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BEHIND THE SCENES AT THE DISMANTLING OF ROE V. WADE

Dec. 16, 2023 at 12:33 pm

1 of 8 | The inside story of how the Supreme Court overturned the constitutional
right to abortion — shooting down compromise and testing the boundaries of how
the law is decided. (Erin Schaff/The New York Times; Illustration by Matt
Dorfman/The New York Times)
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By
ADAM LIPTAK
and
JODI KANTOR
The New York Times

On Feb. 10 last year, Justice Samuel Alito showed his eight colleagues how he
intended to uproot the constitutional right to abortion.

At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson
Women’s Health Organization. After a justice shares an opinion inside the court,
other members scrutinize it. Those in the majority can request revisions,
sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document’s length, Justice Neil Gorsuch wrote back
just 10 minutes later to say that he would sign on to the opinion and had no
changes, according to two people who reviewed the messages. The next morning,
Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days
later, Justice Brett Kavanaugh. None requested a single alteration. The
responses looked like a display of conservative force and discipline.

In the months since, that draft turned into a leak, then law, reshaping the
entire country. The story of how this happened has seemed obvious: The
constitutional right to abortion effectively died with Justice Ruth Bader
Ginsburg, whom President Donald Trump replaced with Barrett, a favorite of the
anti-abortion movement.

But that version is far from complete. Barrett, selected to clinch the court’s
conservative supermajority, opposed even taking up the case. When the jurists
were debating Mississippi’s request to hear it, she first voted in favor — but
later switched to a no, according to several court insiders and a written tally.
A minority of the court chose to move ahead anyway, with Kavanaugh providing the
final vote.

Those dynamics help explain why the responses stacked up so speedily to the
draft opinion in February 2022: Alito appeared to have pregamed it among some of
the conservative justices, out of view from other colleagues, to safeguard a
coalition more fragile than it looked.

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To piece together the hidden narrative of how the court, guided by Alito,
engineered a titanic shift in the law, The New York Times drew on internal
documents, contemporaneous notes and interviews with more than a dozen people
from the court who had real-time knowledge of the proceedings. Because of the
institution’s insistence on confidentiality, they spoke on the condition of
anonymity.

At every stage of the Dobbs litigation, Alito faced impediments: a case that
initially looked inauspicious, reservations by two conservative justices and
efforts by colleagues to pull off a compromise. Chief Justice John Roberts, a
conservative, along with the liberal Justice Stephen Breyer, worked to prevent
or at least limit the outcome. Breyer even considered trying to save Roe v. Wade
by significantly eroding it.

Ginsburg’s death hung over the process. For months, the court delayed announcing
its decision to hear the case, creating the appearance of distance from her
passing. The justices later allowed Mississippi to perform a bait-and-switch,
widening what had been a narrower attempt to restrict abortion while she was
alive into a full assault on Roe.

The most glaring irregularity was the leak to Politico of Alito’s draft. The
identity and motive of the person who disclosed it remains unknown, but the
effect of the breach is clear: It helped lock in the result, the Times found,
undercutting Roberts and Breyer’s quest to find a middle ground.

Now, the abortion debate is returning to the Supreme Court. The justices decided
this week to hear a new case, on the availability of the pills that have become
the most common method of terminating pregnancies. Once again, questions of
choice and life will rest in their hands.

In March 2018, when Mississippi legislators banned most abortions after 15 weeks
of pregnancy, the law looked like little more than a doomed symbolic gesture.

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The state’s one remaining abortion clinic, Jackson Women’s Health, had already
outlasted protesters, a governor who had vowed to close it and so much
opposition that its director had pursued her own law degree. For all those
years, Roe had shielded the clinic.

Now Roe’s protection kicked in again: A federal judge struck down the new state
law later that year; the 5th U.S. Circuit Court of Appeals affirmed that
decision in 2019.

Mississippi’s last option was an appeal to the Supreme Court, which seemed
unlikely to grant review. Trump had vowed to name justices who would
“automatically” overrule Roe, and he had already installed two conservatives.
But as long as Ginsburg, the court’s foremost defender of abortion rights, was
alive, the Mississippi officials would almost certainly not have the votes
required to overrule Roe.



Just as Mississippi’s petition arrived at the court in June 2020, however, the
justice’s health was worsening. She had remained on the bench despite earlier
pleas that she step down so then-President Barack Obama could appoint a
like-minded successor.

Days after Ginsburg’s death on Sept. 18, Trump nominated Barrett, who had once
signed a statement against “abortion on demand.”

Suddenly the Mississippi law had fresh prospects. But instead of discussing
whether to take the case, the court rescheduled the matter again and again, for
an unusual nine times, through the end of the year.

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On Jan. 8, 2021, the justices began a discussion about whether to hear Dobbs
that was marked by urgency and resistance — and led to an extraordinary waiting
game.

The process of deciding whether to hear a case is opaque, unfolding within the
justices’ private meetings. That decision to grant review, or certiorari,
requires at least four votes.

Two decades after the Roe decision, the court in Planned Parenthood v. Casey had
reaffirmed what it called Roe’s core rule: States could not ban abortion before
the point of viability (about 23 weeks). Ever since, the court had refused to
reconsider that line.


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Mississippi had a bold ask: to let states enact abortion limits before the
viability line — starting with its 15-week ban. But it stopped short of
requesting the court to invalidate Roe. “To be clear,” it said, “the questions
presented in this petition do not require the court to overturn Roe or Casey.”

At the justices’ Jan. 8 conference, the three liberals — Justices Breyer, Elena
Kagan and Sonia Sotomayor — and the chief justice opposed hearing the case. The
five other conservatives voted in favor, according to a written tally and
several people familiar with the discussions.

Dobbs had more than cleared the bar to proceed. But at a subsequent meeting,
Kavanaugh made an unorthodox suggestion: The court could withhold the public
announcement of its decision to take the case. The justices could re-list Dobbs
again and again on the public docket, then announce the decision to move forward
in the spring. That would push it to the next term, avoiding a rushed briefing
and argument schedule, according to two people aware of the discussion. His plan
would suggest the court was still debating whether to go forward — and create
the appearance of distance from Ginsburg’s death.


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Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case
that term. But Barrett, the newest member of the court, made a strong stand.
This was not the time, she told Justice Alito, according to two people aware of
the comment.

The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the
docket showed the case being re-listed week after week. Anxiety mounted among
conservatives outside the court. Seizing the moment was vital, they were saying.
Alito and Thomas were in their 70s, and the new conservative supermajority would
not last forever.

In the conservative legal movement, which felt burned by defections by
Republican appointees, Kavanaugh was seen as a flight risk. His jurisprudence on
abortion law was marked by attempts to patch together compromises and push off
difficult decisions.



The court’s delay tactic on Dobbs opened a door for possible persuasion. Roberts
and Breyer, who were both drawn to consensus, were hoping to persuade their two
newest colleagues to reconsider their support for hearing the case. Breyer had
formed strong ties with the justices on the right, yet his entreaties failed.

On May 17, 2021, the court publicly said yes to hearing Mississippi’s petition.
With their waiting game, the justices had nearly broken a record: Dobbs was the
second most re-listed case ever granted review.

But sometime before the announcement, Barrett had switched her vote. Just four
members of the court, the bare minimum, chose to grant, with Kavanaugh taking
the side of Alito, Gorsuch and Thomas. They overrode five colleagues — including
all the female justices — who had an array of concerns. The men appeared to be
betting that Barrett would ultimately side with them in a case she had not
wanted to take.

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That July, with its audience before the court secure, Mississippi made the case
more monumental, abruptly changing its strategy. “Roe and Casey are egregiously
wrong,” the state’s main brief declared on its first page. It urged the justices
to be bold.

As Scott Stewart, the Mississippi solicitor general, prepared for oral arguments
that fall, he was urged by conservatives among the elite Supreme Court bar to
mention a middle ground that might appeal to the chief justice and help ensure
at least a partial victory.

The logic went like this: The state’s 15-week limit on abortions could be upheld
without overturning Roe. That cutoff, broadly consistent with U.S. public
opinion and practices in many other democracies, would still allow the majority
of abortions.

That December, Stewart went big. The justices should “go all the way and
overrule Roe and Casey,” he said.

Soon after, still probing for a narrower result, the chief justice asked the
clinic’s counsel, “If it really is an issue about choice, why is 15 weeks not
enough time?”

The clinic also took an all-or-nothing position. “States will rush to ban
abortion at virtually any point in pregnancy,” responded Julie Rikelman, a
lawyer for the clinic.

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During oral arguments, some of the conservative justices showed little interest
in the chief’s course. Barrett asked about adoption as an alternative to
abortion. Alito pressed Rikelman with skeptical queries about the viability
standard and the history of abortion rights.

Days later, the justices reassembled to take a preliminary vote. Five favored
overturning Roe, meaning they seemed set to prevail. The chief would have
allowed Mississippi’s 15-week ban — technically putting him in the majority —
but would go no further. The three liberals would have upheld the lower courts’
invalidation of the law.

When the chief is on the prevailing side, he typically assigns opinions. But in
this case, several people from the court said, the senior member of the majority
— Thomas — assigned the opinion to Alito.

Now his mission was to keep his five votes together. Members of the court
sometimes change their votes, which are not final until a decision is announced.
When the speedy replies arrived in February, others at the court concluded that
Alito had precirculated the draft opinion among his four allies, getting buy-in
before sharing it with the full group of justices.

In mid-March, Roberts and Breyer continued trying to crack the coalition, making
a last-ditch effort to save Roe. The chief’s middle position had potential
power.

Because the six-vote majority was splintered — Roberts was willing to join the
others in upholding the 15-week law but not in overturning Roe outright — the
court’s rules required that at least five justices had to agree on the position
for it to hold. Otherwise, the rationale resting on the narrowest grounds would
prevail. That meant the chief needed to peel only one vote away from the
conservative side to transform his losing compromise into the winning opinion —
and save the constitutional right to abortion.

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Breyer sought out Kavanaugh, growing passionate in his arguments. If they could
win him over, Breyer even contemplated joining him and the chief in a 15-week
position — restricting the right to abortion to help save it.

Meanwhile, even as the conservatives were seeking the chief’s vote, he was
laboring over a concurring opinion he hoped would be persuasive. It was
difficult to tell how open Kavanaugh was to changing his position, according to
several people aware of the discussions. But he was listening to his colleagues.

On April 29, the chief justice informed his colleagues that the full draft
opinion had been shared with Politico, according to people at the court then. On
the following Monday evening, May 2, the news site published its story.

Along with jubilation from opponents of abortion, and anguish from supporters,
came a shared question: Would this be the final decision? In a grim statement
acknowledging the leak and announcing an investigation, the court said the draft
“does not represent a decision by the court or the final position of any member
on the issues in the case.”

But making the draft public had effectively cemented the votes. The leak
investigation that followed was inconclusive.

At 10:10 a.m. on June 24, 2022, the court released its decision. Alito’s leaked
draft, with some slight changes, had become the final word.

“Roe was egregiously wrong from the start,” he wrote, adding, “It is time to
heed the Constitution and return the issue of abortion to the people’s elected
representatives.” The nation erupted in protest and celebration.




This story was originally published at nytimes.com. Read it here.
The Seattle Times does not append comment threads to stories from wire services
such as the Associated Press, The New York Times, The Washington Post or
Bloomberg News. Rather, we focus on discussions related to local stories by our
own staff. You can read more about our community policies here.
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