The Supreme Court’s Leaked Draft Is Full Of Mystifying Arguments Against Abortion Rights

The leaked draft of a Supreme Court decision this week confirmed what many feared for months: the justices, dominated by conservatives, are gearing up to overturn Roe v. Wade and let tens of millions of women lose access to abortion overnight.

The 98-page draft, which Chief Justice John Roberts confirmed was legitimate but not final, was authored by Justice Samuel Alito, one of the panel’s most conservative jurists. Here are some of the most confounding passages in the leaked text.

Alito repeatedly argued throughout the draft that Roe v. Wade was a mistake because, up until the 1973 ruling, banning abortion was simply the American way.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.”

Alito is right: Abortion was widely banned throughout the centuries of U.S. history when women were legally regarded as second-class citizens, kept out of medical institutions and public office and banned from owning property. They didn’t gain the right to vote until 1920, and Black women faced barriers to voting until Congress passed the Voting Rights Act in 1965 ― just eight years before the court decided Roe.

It wouldn’t be until after the Roe decision that all women in the U.S. gained the rights to apply for a credit card without a man’s permission, demand protection from being fired over a pregnancy, and sue workplace sexual harassers. Up until the 1990s, several states did not recognize marital rape as a crime.

Legal progress on female bodily autonomy was made after women fought their way into the decision-making spaces men had long excluded them from. But here’s what Alito had to say:

“The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions,” he wrote. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Most Americans have probably never heard of Sir Matthew Hale, an English jurist who was born in 1609. But Alito cites him a half-dozen times throughout his draft as proof that abortion bans are an indispensable part of our country’s heritage.

“Hale wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her,’” Alito wrote in defense of outlawing abortion in 2022.

It’s not surprising that Hale was opposed to abortion, given what else reporters recently dug up about him. His legacy includes having two women executed for “witchcraft” and writing in defense of marital rape.

Though Alito holds him up as the authority on the criminality of aborting a fetus, Hale also advocated for the death penalty for children as young as 14.

If all medical standards from Hale’s life were applied today, we wouldn’t know about the existence of germs, medicinal ingredients would include the ground-up skulls of executed criminals and live worms, and doctors would cover ailing patients in leeches to suck our their blood. For most of Hale’s lifetime, doctors didn’t even have a scientific understanding of where babies came from.

Alito wrote throughout his draft that abortion should be a matter of state law. If people want access to it, he wrote, they simply need to elect people who support it.

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” he wrote in one passage. “Women are not without electoral or political power.”

Yet voting rights are under siege like never before, with many conservatives using the myth of widespread voter fraud to justify policies that make it harder for working-class people and ethnic minorities to cast votes. State legislatures that have recently passed such laws ― which include crackdowns on voter identification, early voting and voter registration windows ― are the same ones that plan to outlaw abortion as soon as possible.

Despite those issues, the Supreme Court made it clear last year that it will not act to stop voter suppression laws.

Furthermore, the will of the voters does not always determine the makeup of our country’s highest political and legal bodies. Alito himself was nominated to the high court by a man who became president without winning the popular vote. So were three of the other four justices who apparently want to strike down Roe: Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

The recent wave of abortion bans tied to the presence of “fetal heartbeats” is not based on real science, doctors have said for years. But Alito repeats the myths written those laws anyway, calling them “factual findings.”

The Mississippi legislature “found that at five or six weeks’ gestational age an ‘unborn human beings heart begins beating,’” Alito wrote in one passage.

But doctors say it’s wrong to call that a heartbeat, and doing so is just an attempt to manipulate people’s emotions. At six weeks of gestation, the cardiac activity in an embryo ― which is not yet called a fetus ― “doesn’t at all resemble what would eventually become a functioning human adult heart,” Dr. Colleen McNicholas, an obstetrician-gynecologist who performs abortions, told HuffPost in 2019.

“At that point, it really is just these two tubes with a couple of layers of cardiac or heart cells that can vibrate or cause some sort of movement that we use colloquially to talk about a ‘fetal heartbeat.’”

Without offering any pushback, Alito summarizes a hollow argument by the anti-abortion movement: that being pregnant and being a mother aren’t as difficult as they used to be.

“Attitudes about the pregnancy of unmarried women 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,” Alito wrote.

It would be an appropriate spot to note that the U.S. is one of only six countries in the world without national paid family leave. The rest of the world averages 29 paid weeks. It’s also generous to say that pregnancy-related leave from work is promised “in many cases,” as only 10 states and Washington, D.C., have made their own laws mandating paid family leave.

Contrary to Alito’s characterization, pregnancy and childbirth are not free. The average cost to have a baby in the U.S. is nearly $11,000 ― and that’s without any complications. Accounting for care needed before and after delivery can raise the bill to $30,000. Those costs also vary wildly from state to state.

Alito also harped on how much the decisions in Roe and Planned Parenthood v. Casey ― a 1992 Supreme Court decision that upheld the former ― have divided the country.

“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

But extensive polling shows that public opinion on abortion has been largely stable in recent decades. While many Americans favor some restrictions on who can perform abortions and when, 6 in 10 Americans today oppose overturning Roe. Young adults are also more supportive of abortion access, polling shows, indicating that support for protecting the procedure may increase over time.