Assessing the Claims in the Alito Draft Opinion Overturning Roe

The leaked draft opinion suggesting the Supreme Court is poised to overturn Roe v. Wade cited claims frequently made by opponents of abortion. The opinion, written by Justice Samuel A. Alito Jr., at times presents those assertions as indisputable facts while omitting context and counterarguments.

The Supreme Court confirmed last week that the draft was authentic but cautioned that it was not final. According to Politico, which first published the draft, no other versions have been circulated inside the court.

In the nearly 100-page decision, Justice Alito made or quoted assertions about fetal development, abortion procedures and international laws that have been disputed or are open to interpretation.

Here is a fact check.

What Justice Alito Wrote

“To support this act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States ‘permit[ted] nontherapeutic or elective abortion on demand after the 20th week of gestation.’”

Justice Alito referred to what he called the “factual findings” of the Mississippi Legislature that passed the 2018 law challenging Roe. The law makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe.

Those six countries, Justice Alito wrote, were Canada, China, the Netherlands, North Korea, Singapore and Vietnam. He added that Iceland and Guinea-Bissau were similarly permissive.

This is accurate, based on the letter of international laws. But comparing gestational limits alone does not present a full picture of abortion access in different countries. As The Upshot reported, several countries that specify gestational limits also provide broad exceptions. In Britain, for example, an abortion must be approved by two doctors, but those requests are generally granted. In Denmark and Germany, exceptions for a gestational limit of 12 weeks are made for mental and physical health as well as for life circumstances.

Similarly, in New Zealand, a 2020 law allowed for abortion up to 20 weeks, and beyond if a medical practitioner deemed it appropriate and considered the woman’s physical and mental health. Opponents of abortion rights criticized the law as overly permissive and vague.

A pair of amici briefs illustrates how abortion laws can be cast to make different comparisons.

In a brief submitted on behalf of Mississippi, a European Christian group claimed the majority of European countries allow abortion after the gestational limit “only under exceptional circumstances” like rape or incest, fetal abnormalities or danger to the mother. (Mississippi’s law does not include exceptions for rape or incest.)

By contrast, another brief was filed by European law scholars on behalf of the Jackson Women’s Health Organization, which as the only abortion clinic in Mississippi is at the center of the case. It asserted that 37 European countries allowed for abortion at least until 22 weeks either upon request, on broad socioeconomic grounds or based on the health of the mother that does not entail a risk to her life.

What Justice Alito Wrote

“The legislature then found that at five or six weeks’ gestational age an ‘unborn human being’s heart begins beating.’”

Whether the sound described is a “heartbeat” is a matter of dispute, as The New York Times has previously reported. At six weeks, cells in the embryo begin to form a hollow tube that will develop into a heart, and they emit electrical pulses that a machine translates into a sound.

To many medical experts, this is not the same as a heart beating — defined as when heart valves open and close to pump blood — because the tube in a six-week-old embryo does not yet have valves. Abortion opponents contend that a heart tube is still a heart, and many doctors and medical practitioners use the word “heartbeat” to describe the sound.

What Justice Alito Wrote

“It found that most abortions after 15 weeks employ ‘dilation and evacuation procedures, which involve the use of surgical instruments to crush and tear the unborn child,’ and it concluded that the ‘intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient and demeaning to the medical profession.’”

Dilation and evacuation is the most common procedure used in second-trimester abortions, as Justice Alito and the Mississippi Legislature correctly note. But contrary to their warnings about its danger to maternal health, the procedure is generally considered the safest for most women in that stage of pregnancy.

The procedure involves dilating the cervix, then removing the fetus in parts. Abortion opponents and several Republican states that have passed laws banning the practice and have called it “dismemberment abortion.” Supporters of abortion rights say such language is inflammatory and medically inaccurate.

According to a 2018 report by the National Academies of Sciences, Engineering and Medicine, dilation and extraction is “effective with minimal rates of complications, ranging from 0.05 to 4 percent.” The American College of Obstetricians and Gynecologists has said the procedure “results in fewer medical complications than other abortion procedures, and often is necessary to preserve a woman’s health or her future fertility.”

What Justice Alito Wrote

“They note that attitudes about the pregnancy of unmarried woman have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance.”

Justice Alito summarized and provided citations to several claims he characterized as policy arguments made by abortion opponents.

For the claim about guaranteed leave, he pointed to a federal law requiring businesses with 50 employees or more to provide up to 12 weeks of unpaid family and medical leave, as well as data from the Bureau of Labor Statistics showing that nearly 90 percent of workers had access to unpaid leave. The same data shows, though, that less than a quarter of workers had access to paid family leave in 2021.

Justice Alito also cited Affordable Care Act provisions that required insurers to cover maternity and newborn care as an essential health benefit. But recent studies have found that out-of-pocket costs for maternity care still average more than $3,000 for women with employer-sponsored insurance, and 95 percent of births covered by insurance require some out-of-pocket costs. There is no cost sharing for pregnancy-related care for Medicaid recipients. But Mississippi is one of 12 states that have not yet expanded Medicaid eligibility, leaving tens of thousands of women without the coverage he detailed.

International comparisons, such as the ones Justice Alito made on gestational limits for abortion, were also omitted in this discussion about protections and benefits for pregnant women. The United States is the only country without a paid family leave program among the 38 members of the Organization for Economic Cooperation and Development, which provided an average of 50 weeks of paid leave in 2020.