How The Supreme Court’s Ruling On Dobbs Compares To The Leaked Draft

People protest in response to the Dobbs v Jackson Women’s Health Organization ruling in front of the … [+] U.S. Supreme Court on June 24, 2022 in Washington, DC. (Photo by Brandon Bell/Getty Images)

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In a 6-3 ruling on Dobbs v. Jackson Women’s Health Organization, the Supreme Court has overturned Roe v. Wade. The ruling comes seven weeks after a leaked draft majority opinion, first published by Politico in May, indicated that the justices had voted to overturn the landmark 1973 Court ruling that established abortion as a constitutional right. Following the bombshell reporting and the Court’s confirmation that the leaked document was authentic, the biggest question on the minds of Americans was just how closely the final ruling would follow the contents of the leaked option draft written in February.

After weeks of waiting, the nation has its answer. Here’s how the final 213-page ruling compares to the leaked majority opinion draft authored by Justice Samuel Alito:

How all of the justices voted is now clear.

“ALITO, J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed a dissenting opinion.”

With only Alito’s name on the leaked draft, one of the biggest questions surrounding the runup to the ruling was how each member of the Court would ultimately vote. In May, Politico reported that “a person familiar with the Court’s deliberations” said Justices Thomas, Gorsuch, Kavanaugh and Barrett were voting with Alito at the time. It was assumed that Justices Bryer, Sotomayor and Kagan would file dissents. The final vote indeed fell along ideological lines.

The questions surrounding Roberts’ stance have been answered.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases.”

“Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed.”

Political pundits spent weeks wondering whether Chief Justice John Roberts would guide the Court to some sort of 11th-hour compromise. Instead, Roberts wrote a separate concurring opinion expressing his desire for a more “measured course” for the Court and dismay that the other conservatives had gone too far in deciding to overturn Roe. In this opinion, Roberts writes that he would have upheld Mississippi’s ban on almost all abortions after 15 weeks of pregnancy, but would not have taken the “dramatic step” to take Roe “all the way down to the studs.”

The majority opinion adds a new response to the dissent from Breyer, Sotomayor and Kagan.

“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “‘deeply rooted’’ one, ‘in this Nation’s history and tradition.’”

“The dissent does not identify any pre-Roe authority that supports such a right — no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.”

One of the biggest changes to the majority opinion, which remains largely undifferentiated from the leaked version, is the handful of added paragraphs that address the dissenting opinion of the liberal justices, In these sections, Alito once again leans into the originalist interpretation of the Constitution as the majority’s basis for determining constitutionality, arguing the dissent’s “failure to engage with this long tradition is devastating to its position.”

The added syllabus offers some insight into the decision-making process.

“(1) First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.”

“(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’”

“(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.”

In a final Supreme Court ruling, a syllabus appears ahead of the opinion in order to introduce everything that’s to follow. At eight pages, the syllabus, in this case, is unusually long and goes beyond just a standard summary of the judgment. One of the more interesting things it does is offer a window into the deliberations via a step-by-step format, starting with what the majority saw as the most pressing questions to address in the ruling.

It spells out that, at a high level, the Court looked to five major factors to justify its ruling according to the syllabus: “the nature of the Court’s error,” “the quality of the reasoning,” “workability,” “effect on other areas of law” and “reliance interests.” This offering of a five-part explanation to a three-part question illustrates early on that the Court is pulling out all the stops in its justification to overrule Roe.

The draft and the final ruling both declare Roe to be “egregiously wrong.”

“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.”

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

Overruling a precedent under any circumstance is a big deal, and this ruling marks the first time the Court has scaled back a previously guaranteed right with a ruling. It also comes following a truly unprecedented moment in American history where the public has been offered weeks to parse and pick apart the leaked opinion draft. Early on, the syllabus clearly acknowledges this optics and precedence issue. To that end, it almost immediately veers into defense, tying the decision in with another the Court popularly overturned in the past: Plessy v. Ferguson.

Within the majority opinion, Alito once again pulls no punches in his takedown of those landmark decisions, using near-identical language to that in the draft. Whereas most Supreme Court opinions take on a degree of deference when reviewing previous rulings, Alito’s critique of the “profound wrongness” of the decisions is scathing. In particular, the language used to describe the outcomes of Roe and Casey as “egregiously wrong” in the draft opinion carries over many times in the final ruling. It becomes such a mantra for the case that it’s called into question in the dissenting opinion multiple times, as well.

The words used to describe abortion procedures are still far from neutral.

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.”

“Many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.”

Just as in the leaked draft, Alito’s word choice with regard to abortion and fetal viability, something that previously drew criticism, is striking. The opinion juxtaposes phrases like “abortion-on-demand” with descriptors of “potential life” and “unborn human beings” throughout. It describes providers who terminate pregnancies as “abortionists” and paints the procedure as one that can be “particularly gruesome or barbaric,” contradicting the statement from the American College of Obstetricians and Gynecologists released today. Retaining these passages in the final draft as opposed to updating them to medically referenced terms, indicates that keeping the appearance of neutrality was not a prevailing priority.

The ruling addresses Roberts’ concurrence.

“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party.”

“In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”

A concurring opinion, by definition, agrees with the majority opinion but does not entirely agree with the rationale behind it. In other words, it may arrive at roughly the same conclusion, but may take a different route to get there.

Despite the overall consensus being largely the same, the language in the majority opinion that addresses Roberts’ stance is, in many ways, just as harsh as it is in its treatment of the dissent’s argument and states that to “leave for another day whether to reject any right to an abortion at all” is a stance that is “simply incorrect.”

The published decision ends identically to the leaked draft.

“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.”