Supreme Court ruling that overturned Roe v. Wade very similar to leaked draft, experts say

The Supreme Court decision on Friday that overturned Roe v. Wade, the landmark 1973 case establishing a constitutional right to an abortion, is extremely similar to a draft version of the opinion that leaked early last month, legal experts said.

In the 6-3 majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, a George W. Bush appointee, wrote that the Constitution does not make any reference to abortion. Roe v. Wade was “egregiously wrong from the start,” he wrote, adding that the reasoning that abortion access should be protected is “exceptionally weak.”

The overall substance of Alito’s majority opinion is nearly identical to what he wrote in the draft majority opinion that Politico published on May 2, said Joanna Grossmana professor at Southern Methodist University’s Dedman School of Law.

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“I don’t think there are any differences that I would characterize as significant,” Grossman said.

Charles W. “Rocky” Rhodes, a professor at South Texas College of Law, said he wasn’t surprised the final opinion was largely unchanged. From the first draft, Alito included language that appeared to be designed to appeal to other judges, Rhodes said.

For example, both the leaked draft and the final majority opinion note that all 50 states and Washington, D.C. have “safe haven” laws that allow parents to voluntarily give up a newborn at a safe place, such as a hospital or fire station, without fear of criminal liability. Justice Amy Coney Barrett, who joined in the majority opinion, focused on “safe haven” laws during oral arguments for the Dobbs case last year.

“You could see, as you read that initial draft, his statements that were designed to attract the attention of those judges who he needed to join the [majority] opinion,” Rhodes said.

The draft majority opinion that Politico published May 2 is 98 pages long. It includes a notation that it circulated among justices on Feb. 10.

The opinion released Friday is much longer at 213 pages. Of that, 109 pages are Alito’s majority opinion. It also includes three concurring opinions from Justice Clarence Thomas, Justice Brett Kavanaugh and Chief Justice John Roberts, and a dissenting opinion from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Unlike the leaked draft, Alito’s final majority opinion specifically references those concurring and dissenting opinions. For example, Alito writes on page 35 that the dissent “is very candid in that it cannot show that a constitutional right to an abortion has any foundation, let alone a ‘deeply rooted’ one.”

Grossman noted that the leaked draft also addressed many of the arguments included in the dissent. However, it’s hard to say whether Alito anticipated those arguments, or whether draft versions of the concurring and dissenting opinions were already circulating among the justices when the draft majority opinion leaked.

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Also included the opinion released Friday is a syllabus, or a headnote — a standard addition that is not part of the official decision but provides an outline of the case and summarizes the decision.

Grossman said she was surprised to see some aspects of Alito’s majority opinion unchanged from the leaked draft. For example, critics noted after the leak that Alito cited 17th century English jurist Lord Matthew Hale on eight occasions. Hale is noted for believing men could not be prosecuted for raping their wives, and for presiding over a witchcraft trial where two women were sentenced to death, according to The Washington Post. The final majority opinion still includes references to Hale.

“There’s a few things that you thought they would have toned down in response to crowdsourcing, that stayed exactly the same,” Grossman said.

Because the Supreme Court process is so secretive, it’s hard to say how much, and how often, a majority opinion changes between its first and final drafts, Grossman said. While biographies about Supreme Court justices that have discussed how majority opinions have evolved in specific cases, and some justice’s private papers have been turned over to the Library of Congress after they died, there’s no way to tell how the process usually plays out, Grossman said.

“We don’t have access to the Supreme Court’s decision-making in any way that is transparent or studyable,” she said.

Rhodes, on the other hand, said that in some cases, legal scholars are aware of more significant changes made before an opinion was released. The fact Alito did not heavily alter the final majority opinion is likely an indication that he did not need to, Rhodes said.

“He obviously had pretty firm commitments from those judges who joined him,” Rhodes said.