I publish here the full, 98-page text of a draft opinion leaked to the newspaper, Politico, that completely overturns Roe v Wade.
It is an awful opinion. Unfortunately, it capitalizes on the fact that Roe itself was a poorly thought out and badly written opinion that qualified what should have been absolute; that is the right of a woman, indeed of any person, to the full control of their own person free of government interference.
As Elie Mystal brilliantly points out in his book, Allow Me To Retort, the 4th Amendment should make it clear that a woman has the right to be secure against unreasonable search and seizure. Surely that must include a woman’s womb, even before her home or locker at work. The 14th Amendment guaranteeing equal protection under law must certainly mean that if someone with male reproductive parts has full control over their reproductive system for the full cycle of pregnancy and birth, then so must a person with female reproductive parts.
But these were not the arguments of Justice Harry Blackmun, who was justifiably praised for his vote and opinion in Roe because Richard Nixon had specifically appointed Blackmun to the Supreme Court to ensure that abortion was not legalized.
But Blackmun, true to his nature at the time (he would become more decisive, and a bit more liberal in his later years), wavered. He delved into tortured considerations because he could not see these guarantees of rights to women in the absolute terms that they apply to men. And so we got Roe v Wade, a flawed opinion that has been under attack ever since.
Alito’s draft opinion pounces on these weaknesses. He uses Blackmun’s own indecisiveness to help build his case that the Constitution does not protect a woman’s right to full control of her body, because that body can develop and give birth to a child. It is precisely because Blackmun wavered and compromised a woman’s control over her body that Alito can argue that even Roe established that this right was not absolute, but was limited specifically for child-bearing women and no one else. That is, Roe established a separate class of people, with different, more limited rights, at least in this regard.
The cynicism and misogyny in Alito’s draft opinion goes much deeper, but I’ll leave it to you to read for yourself. Click here for the full text of the draft opinion. Keep some anti-nausea meds and calming substances or tools handy while you read.