Washington — A draft opinion leaked and published late Monday suggests the Supreme Court may strike down its nearly five-decade-old ruling establishing the constitutional right to an abortion, a move that if final would be a watershed in the decades-long fight by anti-abortion rights advocates to roll back the landmark Roe v. Wade decision.
Such a ruling in the case involving a Mississippi abortion law would come from a Supreme Court that, thanks to three appointments by former President Donald Trump, boasts a 6-3 conservative majority. The draft opinion obtained and published by Politico was authored by Justice Samuel Alito, and it’s not clear whether and which justices would join him.
While the Supreme Court confirmed the authenticity of the document, it stressed that it “does not represent a decision by the court or the final position of any member on the issues in the case.”
But the emergence of the draft opinion has prompted scrutiny — and in some instances blistering criticism — of the Supreme Court’s conservative wing, and particularly Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three were tapped for the Supreme Court by Trump and, during their confirmation hearings, fielded multiple questions from skeptical Democrats about their views on Roe v. Wade and whether they would vote to overturn the decision.
Here is what the justices appointed by Republican presidents have said about the Supreme Court’s abortion decisions:
Chief Justice John Roberts
During his confirmation hearing before the Senate Judiciary Committee in 2005, Roberts spoke of the 1992 decision Planned Parenthood v. Casey, which reaffirmed Roe’s central holding and said states cannot place an undue burden on the right to an abortion before fetal viability.
“One way to look at it is that the Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court, entitled to respect under principles of stare decisis,” he said at the time. “And that would be the body of law that any judge confronting an issue in his care would begin with, not simply the decision in Roe v. Wade but its reaffirmation in the Casey decision.”
Roberts reiterated his commitment to the doctrine of stare decisis, or fidelity to precedent, in a 2020 opinion, in which he joined with four liberal justices in striking down a Louisiana measure that required doctors who provide abortions to have admitting privileges at nearby hospitals.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents,” he wrote.
Justice Clarence Thomas
Thomas has not been shy about his views on the Supreme Court’s past decisions on abortion, and during oral arguments in the Mississippi court fight, which involves a law banning abortions after 15 weeks, he noted the right to an abortion does not expressly appear in the Constitution.
“I understand we’re talking about abortion here, but what is confusing is that if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It’s there,” he said. “What specifically is the right here that we’re talking about?”
Thomas went further in a dissenting opinion to the Supreme Court’s decision on the Louisiana abortion law.
The court’s past decisions on abortion, he wrote, “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
Justice Samuel Alito
During his 2006 confirmation hearing before the Judiciary Committee, Alito called Roe an “important precedent of the Supreme Court” that had been reaffirmed but repeatedly challenged at all levels of the courts.
“The Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis,” he said.
Justice Neil Gorsuch
Gorsuch’s comments to the Judiciary panel during his confirmation hearing in 2017 echoed those of Alito. He told senators then that “all precedent of the U.S. Supreme Court deserves the respect of precedent, which is quite a lot. It is the anchor of law. It is the starting place for a judge.”
Speaking of Roe, Gorsuch said: “The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
Justice Brett Kavanaugh
Nominated to replace Justice Anthony Kennedy, considered the Supreme Court’s swing vote, the future of Roe v. Wade was a key issue during Kavanaugh’s confirmation hearings.
He told the Judiciary Committee that Roe is “settled as a precedent” that is “entitled the respect under principles of stare decisis.”
“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” he said. “I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor, and Justice Souter, at great length went through those factors.”
Kavanaugh’s views on Roe were crucial in earning him the support of Sen. Susan Collins of Maine, a Republican who supports abortion rights. When Collins announced her support for Kavanaugh’s nomination in 2018, she said he is the “first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself.”
“He believes that precedent ‘is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent,'” she said nearly four years ago on the Senate floor. “In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.”
But following the Politico report indicating that Kavanaugh and Gorsuch had voted to overturn Roe, Collins said that if the draft opinion is the final decision and reporting is accurate, “it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”
Justice Amy Coney Barrett
Barrett, like other justices before her, declined to take a position on whether Roe was correctly decided, but referred to the concept of “super-precedents,” which she defined as “cases that are so well settled that no political actors and no people seriously push for their overruling.”
Barrett told the Judiciary Committee the questions she was fielding about Roe indicates the decision “doesn’t fall in that category” of super-precedents, and she noted that scholars “across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.”