Justice Alito hatched a secret plan to persuade conservative Supreme Court justices to reject the constitutional right to abortion, according to a new report.
The Supreme Court voted last year to overturn the landmark 1973 Roe V. Wade decision, which legalized abortion care and made state abortion bans unconstitutional.
On June 24, 2022, this right was repealed when a majority voted in the Mississippi case Dobbs v. Jackson Women's Health Organization that there were no constitutional protections for abortion.
Just hours after the announcement, abortion clinics in some states were forced to close.
Since the court's ruling, 21 states have banned or restricted access to abortion.
The Supreme Court voted to overturn Roe v. Wade in June 2022
Justice Alito hatched a secret plan to persuade conservative Supreme Court justices to reject the constitutional right to abortion, according to a new report
Justice Alito's 98-page option draft in the case was signed without amendment by Justice Neil Gorsuch, Justice Clarence Thomas, Justice Amy Coney Barrett and Justice Brett Kavanaugh.
The draft was leaked and sparked widespread protests across the country, but became law months later.
But Judge Barrett, who was chosen by Donald Trump to replace Ruth Bader Ginsburg in order to achieve a conservative supermajority and secure the vote, did not even want to hear the case, the New York Times reported.
When jurors debated Mississippi's request for a hearing, she initially voted in favor but later switched to no, sources told the Times.
The driving force behind the other justice's vote to hear the long-running case in May 2021 was Justice Alito, who had worked to craft an anti-abortion legal strategy since his time as a lawyer for the Regan administration, according to sources and internal documents. which are available to the Times.
According to the Times, Alito recognized the opportunity to eliminate access to abortion in America and encouraged the other male conservatives on the bench to vote to hear the case.
According to the report, in February 2022, Alito also distributed a draft preview opinion to his conservative colleagues before the rest of the bench to know the outcome before the game.
The court delayed announcing it would hear the case to avoid appearing to capitalize on the death of Bader Ginsburg, the leading defender of abortion rights.
The Jackson Women's Health Organization (Mississippi) was sued by the state to prevent its abortion care in a case that led to the overturn of Roe v. Wade
Ruth Bader Ginsburg, the court's leading abortion rights advocate, died in 2020
After Ginsburg's death, which likely occurred under President Trump's administration, it was assumed that the Republican president would seize the opportunity to install a conservative justice and fulfill the conservative right's fifty-year campaign to abolish abortion rights.
Alito was also instrumental in enabling Mississippi to carry out a “bait and switch” that transformed the case from a narrow attempt to restrict abortion in the state during Ginsburg's lifetime into a full-scale attack on the constitutional Roe decision after her death.
The court “overstepped every one of its normal procedural guardrails,” wrote Richard M. Re, a law professor at the University of Virginia and a former Kavanaugh clerk on a federal appeals court.
“The court compromised its own deliberative process” by retreating from the abortion debate and intended “to return that authority to the people and their elected representatives,” he added.
Chief Justice John Roberts Jr., a conservative, worked with liberal Justice Stephen G. Breyer to prevent or at least limit the outcome.
According to the Times, Justice Breyer even considered trying to overturn Roe v. Saving Wade through a significant hollowing out.
Since the court's ruling, 21 states have banned or restricted access to abortion
An abortion advocate outside the Jackson Women's Health Organization clinic in June 2022
Justice Alito's disclosure of the draft to Politico helped secure the outcome because it undermined attempts at compromise by Chief Justice Roberts and Justice Breyer, the paper said.
Outstanding votes were held partly in secret to give justices the opportunity to change their minds, and the publication of the draft had effectively consolidated the votes.
In his draft, Justice Alito wrote that Roe and Casey were legally unsound, that abortion rights had a limited history in the United States, and that abortion destroyed what the Mississippi law called the life of an “unborn human being.”
“Roe was sorely wrong from the beginning,” he wrote.
Adding: “It is time to respect the Constitution and return the issue of abortion to the elected representatives.”
After the revelation, Alito worked hard to maintain the five votes to overturn Roe, knowing that losing one vote would stall the conservative anti-abortion movement.
This was made starkly clear when Justice Thomas was hospitalized for a mild infection, heightening fears that the conservative supermajority would not last forever.
Additionally, Chief Justice Roberts continued to try to crack the coalition and advocated compromise in a last-ditch effort to save Roe.
According to the Times, liberal Justice Breyer even considered striking a compromise with the chief and Kavanaugh that would restrict abortion after 15 weeks while upholding constitutional protections and limiting Roe to save it.
Since the repeal of Roe, laws restricting abortion have increasingly been viewed as a nuisance breathing down the necks of Republican lawmakers.