Last week, before the leak of a Supreme Court draft opinion by Justice Samuel Alito decreeing the demise of Roe v. Wade and Planned Parenthood v. Casey changed the world, The Wall Street Journal ran a curious editorial about a “ferocious lobbying campaign” to change the minds and the votes of the justices in the Mississipi abortion law case at the center of Alito’s draft. “The particular targets are Justices [Amy Coney] Barrett and Brett Kavanaugh, the two newest Justices,” the editorial read, suggesting that Chief Justice John Roberts was working hard behind the scenes to peel them off from the dark side — to a compromise ruling that would preserve abortion rights, at least for the foreseeable future.
“We hope he doesn’t succeed—for the good of the Court and the country,” the editorial board declared, recalling the time the chief crafted a compromise ruling a decade ago that saved Obamacare. If Roberts’ charm offensive failed this time around, the editorial suggested, then a true conservative would write the opinion of the court, and abortion law would, as true conservatives have been demanding for decades, definitively be a matter for individual states to decide. “Our guess is that Justice Alito would then get the assignment,” the board surmised.
That guess now sounds like a leak of its own. And conservatives aren’t talking about it, preferring instead to decry the disclosure of Alito’s draft opinion, while papering over how extreme and maximalist his reasoning for ending Roe is — or how closely his rationale tracks with arguments that the religious right, anti-abortion advocates, and social conservatives have made for decades. Republicans are even circulating talking points that play down Alito’s language and paint them as the reasonable, consensus-builders on abortion policy, unlike those radical Democrats who don’t even have the votes to codify Roe into law. “Republicans must be the opposite, demonstrating compassion and kindness toward all people, mother and child, born and unborn,” a memorandum by Senate Republicans’ campaign arm, obtained by Axios, said. (There’s no mention in the memo that a nationwide abortion ban is in conservatives’ sights once Roe falls.)
Yet Alito’s draft opinion is a remarkable document in its own right. Its substance, rather than the leak itself, matters because Alito, out of all the six conservatives who dominate the Supreme Court, is the closest to a committed, Republican culture warrior there is — not just by dint of his voting record on issues big and small, but also the things he says in open court or when he’s had a glass of wine or two. As when he stated, during a virtual gathering of the Federalist Society, that religious liberty and gun rights are under siege in America. Or when he became the first among his peers to wonder aloud about critical race theory in public schools while the court was in session. Or his stated reservations about trans-inclusive language as infringement of freedom of speech.
His anti-Roe opinion, likewise, reads like a barn-burner meant to be broken up into Fox News soundbites of red meat: “Roe and Casey must be overruled.” The reasoning in the original 1973 ruling “was exceptionally weak, and the decision has had damaging consequences.” Roe stood for an “exercise of raw judicial power,” igniting “a national controversy that has embittered our political culture for a half-century.” And Alito comes close to saying that Roe silenced, or canceled, conservative voices who think differently: “The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”
The draft is such a pure distillation of Republican orthodoxy in this area that elite Washington lawyers and thinkers on the right who have been committed to this legal project for years have demanded, in coordinated fashion, that the justices must release the decision without any further delay. God forbid Kavanaugh or Barrett waffle. “If the opinion or the vote tabulation were to change in any meaningful way, it would appear that the justices caved to intimidation tactics — which would simply breed more intimidation tactics,” wrote Andrew McCarthy in The New York Post. “We’d have not the rule of law but the law of the jungle.”
But the law of the jungle is precisely what Alito, if left to his own devices, would unleash on the nation. The central rationale for overturning Roe in his draft is that abortion is not and has never been part of our nation’s history, tradition, and scheme of “ordered liberty,” let alone explicitly mentioned in the Constitution. At the heart of Alito’s Dobbs v. Jackson Women’s Health Organization draft is a discussion of what American law calls “substantive due process” — the Supreme Court’s recognition of fundamental, constitutional rights that aren’t in the constitutional text, yet are nonetheless so fundamental and commonplace in everyday American life that they deserve protection. Like the right to raise children. Or to marry the person you love. Or to make decisions about the use of contraception.
None of those things appear in the Constitution, but Supreme Court justices have built a tower of precedent since the beginning of the 20th century to protect them. During the oral argument in the case, Justice Sonia Sotomayor made precisely this point, pressing the solicitor general of Mississippi to explain whether letting Roe fall would mean that all those other rights would fall in due time. Scott Stewart, the state’s lawyer, wouldn’t play along, but he did claim that those other rights would not be in danger. “I’d add none of them involve the purposeful termination of a human life,” Stewart said.
Almost word-for-word, Alito adopts this line of thinking: that the right protected by Roe and Casey is different, and thus an anomaly, because it enshrines a constitutional protection that affects unborn human life, whereas the rights of people to engage in a range of other private conduct doesn’t. In a telling passage, Alito name-checks more than a dozen cases that preceded or followed Roe — including Loving v. Virginia, which consecrated interracial marriage, and Obergefell v. Hodges, which did the same for same-sex marriage — and then declares that none of those decisions are imperiled if Roe is declared buried and dead. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” Alito writes. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
Later in his unvarnished screed, in case there are any lingering doubts, he reassures his readers that no other bedrock right is in play. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito cautions.
In fact, that’s exactly what will happen if this draft or a version of it is the final ruling. As Adam Winkler, a professor of constitutional law at UCLA, observes, Alito’s singling out of abortion due to concerns for “life or potential life” is not a principled legal judgment, but a policy view masquerading as such. President Joe Biden, who opposed Alito’s confirmation to the Supreme Court as senator, saw the threat to other constitutional protections clearly on Tuesday when he said that if the draft stays as is, then all bets are off. “It would mean that every other decision relating to the notion of privacy is thrown into question,” Biden told reporters. “If what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights … who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions.” In other words, this is not a drill. And recent state enactments that transmogrify Republican moral panics about gay or transgender people or the teaching of our nation’s history of racism into law simply confirm how easily these fever dreams can go from a Tucker Carlson monologue into the halls of power in the several states.
If Alito’s opinion has one redeeming quality, it is how openly it portends what many view as the next frontier in a post-Roe world — the protection of “fetal personhood” under a supercharged notion that the Constitution’s guarantee of equality and due process for all persons should include fetuses. That’s a thing. And with or without Roe, Republican-led states and officials aren’t waiting for a pronouncement from the Supreme Court of the United States to etch these beliefs into law — and, in many cases, to punish people who are pregnant. Republicans may try to wish away any notion that they want to put women in prison or that they’re out to take away people’s contraception, but that’s the logical endpoint of drawing a hard, jurisprudential line on abortion, as Alito does. His draft opinion, extreme as it is, may not carry the day in the end, but it reflects a future that’s already here.