On Monday night, a draft of Justice Alito’s ruling for the majority in Dobbs v. Jackson was published by Politico. This draft completely overturns Roe and turns abortion rights back to each state. It was a shock because many people hoped or expected that some part of Roe’s precedent that has existed for 49 years might be maintained, even while expecting the conservative majority to support drastically cutting back abortion rights. It was a further surprise because the Court’s draft opinions have always been kept tightly secret until the final ruling is released.
People immediately started to congregate in front of the Supreme Court that night:
By the next day, huge crowds were in front of the Court.
The police, as is their typical practice, created separate areas for people supporting the different sides, with a no-man’s land in between. The separation is voluntary, and anyone is free to wander between sides. At the times we were there, both sides were largely filled with pro-choice advocates.
We had expected to see more gatherings at the Court in the next days and weeks, but as of Thursday morning, the Court grounds had been barricaded.
Dobbs v. Jackson
The specific case that is being used as a vehicle to overturn Roe is Dobbs v. Jackson, a Mississippi law that restricts abortions after 15 weeks. While it was expected that the conservative majority on the Court would support the Mississippi law, it would have been possible to rule that the Mississippi law was permissible but that some core part of Roe still remained. This may well be the position that Chief Justice Roberts might be taking, since it would allow him to claim that the Court is respecting precedent even while drastically cutting back on abortion rights. Alito’s leaked memo with the tentative majority position specifically overturned all of Roe, which completely negates precedent.
Here’s how it looked in front of the Court as Dobbs v. Jackson was argued inside on December 1, 2021:
The Court will not issue their final opinion until sometime between now and late June, most likely late June. But it is highly likely that the draft from Alito, with perhaps some minor modifications, will be the majority position.
It’s important to remember that abortion was not a partisan issue at the time of Roe. The case was decided 7-2, with the 7 composed of 5 Justices appointed by Republican Presidents and 2 by Democratic Presidents. Of the two Justices in opposition to Roe, one was a Republican and one was a Democrat.
If you want to understand more of the history of abortion politics before and since Roe, we’d recommend watching the documentary Reversing Roe (streaming on Netflix). It was made in 2018, and details both the efforts to get Roe into law and the subsequent efforts to overturn it, with historical footage and interviews with many of the major activists on each side.
Here’s the trailer for it: