"We hold that Roe and Casey must be overruled," Justice Alito writes in an initial majority draft circulated inside the court.
Alito’s draft opinion ventures even further into this racially sensitive territory by observing in a footnote that some early proponents of abortion rights also had unsavory views in favor of eugenics.
“Some such supporters have been motivated by a desire to suppress the size of the African American population,” Alito writes. “It is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
Alito writes that by raising the point he isn’t casting aspersions on anyone. “For our part, we do not question the motives of either those who have supported and those who have opposed laws restricting abortion,” he writes.
Alito also addresses concern about the impact the decision could have on public discourse. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
In the main opinion in the 1992 Casey decision, Justices Sandra Day O’Connor, Anthony Kennedy and Davis Souter warned that the court would pay a “terrible price” for overruling Roe, despite criticism of the decision from some in the public and the legal community.
“While it has engendered disapproval, it has not been unworkable,” the three justices wrote then. “An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe‘s central holding a doctrinal remnant.”
When Dobbs was argued in December, Roberts seemed out of sync with the other conservative justices, as he has been in a number of cases including one challenging the Affordable Care Act.
At the argument session last fall, Roberts seemed to be searching for a way to uphold Mississippi’s 15-week ban without completely abandoning the Roeframework.
“Viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?” Roberts asked during the arguments. “The thing that is at issue before us today is 15 weeks.”
Nods to conservative colleagues
While Alito’s draft opinion doesn’t cater much to Roberts’ views, portions of it seem intended to address the specific interests of other justices. One passage argues that social attitudes toward out-of-wedlock pregnancies “have changed drastically” since the 1970s and that increased demand for adoption makes abortion less necessary.
Those points dovetail with issues that Barrett – a Trump appointee and the court’s newest member – raised at the December arguments. She suggested laws allowing people to surrender newborn babies on a no-questions-asked basis mean carrying a pregnancy to term doesn’t oblige one to engage in child rearing.
“Why don’t the safe haven laws take care of that problem?” asked Barrett, who adopted two of her seven children.”