America’s near half century of uneasy status quo when it comes to abortion could soon be over. That is the likely outcome telegraphed by the leak to Politico of a draft opinion, authored by Justice Samuel Alito in February, that holds “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” 

Dobbs v. Jackson Women’s Health Organization, the case out of Mississippi decided in the leaked opinion, is now on track to be one of enormous consequence for the future of the Nine. No draft opinion has ever in the court’s modern history been leaked.   

In proposing to topple Roe v. Wade and Planned Parenthood v. Casey, the high court, jaggedly split between six conservatives and three liberals, is foreshadowing a turbulent new chapter in its ongoing abortion drama, one in which each state would be empowered to go its own way on the question. Hitting headlines as midterm primaries are set to begin, the draft opinion is sure to have political aftershocks.     

Abortion is a subject that touches on religion, ethics, politics, and culture, but its fate will be decided by legal citation and argument. To that task Justice Alito, who acceded to the court in 2006, has composed legal prose with the certainty that it would be read for decades hence. This opinion, if it survives revision and redrafting, is a barnburner that aims to leave little doubt that Roe is a dead letter.   

Much attention will swirl around the leak itself, a stunning breach of an institution known for its reluctance to divulge information. It disclosed the majority’s opinion that Roe v. Wade was “egregiously wrong from the start.” More enduring than the mechanisms of the leak will be the lines of legal argument that — if maintained in the final draft — are set to reorder the legal and political landscape.

Justice Alito’s core argument is that the right to an abortion is not found in the Due Process Clause of the 14th Amendment. He adumbrates that the right to an abortion was “entirely unknown in American law” until the late 20th century. While the Due Process Clause has served as a portal into constitutional protection for contraception and gay marriage, abortion is different because it touches on “fetal life.” 

“The Constitution and the rule of law demand” that the matter of abortion be “returned to the people’s elected representatives,” Justice Alito writes. This return is fueled by the justice’s inability to detect the guarantee of an abortion in the 14th Amendment’s invocation  of “liberty.” He explains that for an implicit right to be extracted from that clause, it must be “deeply rooted” in America’s “history and tradition.”

Meditating on the meaning of liberty in the Constitution, Justice Alito finds that “the Fourteenth Amendment does not protect the right to an abortion.” He characterizes support for the contrary opinion before the second half of the 20th century as, “Zero. None.” In endeavoring to “set the record straight,” the majority opinion explains that abortion was no right before Roe. It was almost universally held to be a crime. 

Tracing this “unbroken tradition of prohibiting abortion,” Justice Alito’s legal broadside continues by divorcing the right to an abortion from the constellation of other freedoms subsumed under the right to privacy because of its tight ties to human life. Driven by history and convinced abortion is nowhere in our founding prachment, the majority would return “the power to weigh” the justice of abortion to “the people.” 

Justice Alito’s arguments do not unfold in a vacuum. The majority commands the court to reverse its own precedent, and compares Roe to Plessy v. Fergusson, in which the court ruled that racial segregation was constitutional. They are both, Justice Alito writes, “egregiously wrong and deeply damaging.” Of Roe, he notes that it was “on a collision course with the Constitution from the day it was decided.”

There is no nostalgia for Roe in this decision, just a desire to consign this “exceedingly weak decision” to the dustbin of constitutional history and transfer this “profound moral question” to legislative halls from the bench. The Roe court noted “the wide divergence of thinking on this most sensitive and difficult question.”

Left unanswered is the future of abortion in America. That question would, if this leaked opinion turns out to be close to the final judgment of the court, likely now be decided at the ballot box rather than the bench.