The leaked Supreme Court draft opinion that foreshadowed the overturning of abortion rights last month resembles Friday’s final decision, signaling that the justices did not buckle under weeks of public pressure.
Despite a national outcry of protests, marches, and an alleged attempted assassination against Justice Brett Kavanaugh, Justice Samuel Alito‘s majority opinion in Dobbs v. Jackson Women’s Health Organization very closely resembled the draft opinion leaked by Politico on May 2.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. … That is what the Constitution and the rule of law demand,” Alito wrote in the draft and the final decision on Friday.
The draft opinion signaled Friday’s likely outcome that Justices Neil Gorsuch, Amy Coney Barrett, and Kavanaugh, appointees of former President Donald Trump, would join Justices Clarence Thomas and Alito to upend 50 years of precedent regarding abortion access and allow states to create laws banning or severely limiting abortion.
A former high court clerk for Alito, Sherif Girgis, told the Washington Examiner he thinks the final ruling is “identical in almost all respects, except for the addition of those paragraphs responding to the dissent” from the court’s three Democratic-appointed justices.
“The fact that there were no changes suggests that while people obviously have predictable disagreements with the substance of the legal analysis, or they think that the legal factors cut in a different direction, there were basically no identified objective errors in terms of historical claims that are easily rebutted and that were rebutted,” Girgis said.
Some of the primary differences between the leaked draft and the final decision reside at the beginning of the 213-page opinion, which includes a detailed syllabus outlining the holding that “the Constitution does not confer a right to abortion,” overruling Roe v. Wade and Planned Parenthood v. Casey.
“The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider,” according to the syllabus.
The final ruling also showcased several concurrences by the justices in the majority, as well as the dissent from the three-member liberal bloc of the high court.
“One result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer wrote.
“Whatever the exact scope of the coming laws,” the dissenters wrote, “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”
The justices in the minority also criticized the majority’s “cavalier approach to overturning this Court’s precedents.”
“They have passed laws without any exceptions for when the woman is the victim of rape or incest,” the Democratic-appointed justices added. “Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life.”
Additionally, the final ruling confirmed how Chief Justice John Roberts would lean, as he voted to concur with the final judgment but maintained he would prefer a narrower scope in favor of upholding Mississippi’s law, in contrast with the broader implications of Alito’s ruling.
Below is a comparison of the final opinion and the draft opinion that leaked in May:
Final decision for Dobbs v. Jackson Women’s Health Organization
The leaked draft opinion from May 2