Behind the Scenes at the Dismantling of Roe v. Wade

On Feb. 10 last year, Justice Samuel Alito showed his eight colleagues how he intended to uproot the constitutional right to abortion.

At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document’s length, Justice Neil Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.

In the months since, that draft turned into a leak, then law, reshaping the entire country. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald Trump replaced with Barrett, a favorite of the anti-abortion movement.

But that version is far from complete. Barrett, selected to clinch the court’s conservative supermajority, opposed even taking up the case. When the jurists were debating Mississippi’s request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. A minority of the court chose to move ahead anyway, with Kavanaugh providing the final vote.

Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.

To piece together the hidden narrative of how the court, guided by Alito, engineered a titanic shift in the law, The New York Times drew on internal documents, contemporaneous notes and interviews with more than a dozen people from the court who had real-time knowledge of the proceedings. Because of the institution’s insistence on confidentiality, they spoke on the condition of anonymity.

At every stage of the Dobbs litigation, Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John Roberts, a conservative, along with the liberal Justice Stephen Breyer, worked to prevent or at least limit the outcome. Breyer even considered trying to save Roe v. Wade by significantly eroding it.

Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe.

The most glaring irregularity was the leak to Politico of Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, the Times found, undercutting Roberts and Breyer’s quest to find a middle ground.

Now, the abortion debate is returning to the Supreme Court. The justices decided this week to hear a new case, on the availability of the pills that have become the most common method of terminating pregnancies. Once again, questions of choice and life will rest in their hands.

In March 2018, when Mississippi legislators banned most abortions after 15 weeks of pregnancy, the law looked like little more than a doomed symbolic gesture.

The state’s one remaining abortion clinic, Jackson Women’s Health, had already outlasted protesters, a governor who had vowed to close it and so much opposition that its director had pursued her own law degree. For all those years, Roe had shielded the clinic.

Now Roe’s protection kicked in again: A federal judge struck down the new state law later that year; the 5th U.S. Circuit Court of Appeals affirmed that decision in 2019.

Mississippi’s last option was an appeal to the Supreme Court, which seemed unlikely to grant review. Trump had vowed to name justices who would “automatically” overrule Roe, and he had already installed two conservatives. But as long as Ginsburg, the court’s foremost defender of abortion rights, was alive, the Mississippi officials would almost certainly not have the votes required to overrule Roe.

Just as Mississippi’s petition arrived at the court in June 2020, however, the justice’s health was worsening. She had remained on the bench despite earlier pleas that she step down so then-President Barack Obama could appoint a like-minded successor.

Days after Ginsburg’s death on Sept. 18, Trump nominated Barrett, who had once signed a statement against “abortion on demand.”

Suddenly the Mississippi law had fresh prospects. But instead of discussing whether to take the case, the court rescheduled the matter again and again, for an unusual nine times, through the end of the year.

On Jan. 8, 2021, the justices began a discussion about whether to hear Dobbs that was marked by urgency and resistance — and led to an extraordinary waiting game.

The process of deciding whether to hear a case is opaque, unfolding within the justices’ private meetings. That decision to grant review, or certiorari, requires at least four votes.

Two decades after the Roe decision, the court in Planned Parenthood v. Casey had reaffirmed what it called Roe’s core rule: States could not ban abortion before the point of viability (about 23 weeks). Ever since, the court had refused to reconsider that line.

Mississippi had a bold ask: to let states enact abortion limits before the viability line — starting with its 15-week ban. But it stopped short of requesting the court to invalidate Roe. “To be clear,” it said, “the questions presented in this petition do not require the court to overturn Roe or Casey.”

At the justices’ Jan. 8 conference, the three liberals — Justices Breyer, Elena Kagan and Sonia Sotomayor — and the chief justice opposed hearing the case. The five other conservatives voted in favor, according to a written tally and several people familiar with the discussions.

Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, Kavanaugh made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring. That would push it to the next term, avoiding a rushed briefing and argument schedule, according to two people aware of the discussion. His plan would suggest the court was still debating whether to go forward — and create the appearance of distance from Ginsburg’s death.

Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case that term. But Barrett, the newest member of the court, made a strong stand. This was not the time, she told Justice Alito, according to two people aware of the comment.

The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the docket showed the case being re-listed week after week. Anxiety mounted among conservatives outside the court. Seizing the moment was vital, they were saying. Alito and Thomas were in their 70s, and the new conservative supermajority would not last forever.

In the conservative legal movement, which felt burned by defections by Republican appointees, Kavanaugh was seen as a flight risk. His jurisprudence on abortion law was marked by attempts to patch together compromises and push off difficult decisions.

The court’s delay tactic on Dobbs opened a door for possible persuasion. Roberts and Breyer, who were both drawn to consensus, were hoping to persuade their two newest colleagues to reconsider their support for hearing the case. Breyer had formed strong ties with the justices on the right, yet his entreaties failed.

On May 17, 2021, the court publicly said yes to hearing Mississippi’s petition. With their waiting game, the justices had nearly broken a record: Dobbs was the second most re-listed case ever granted review.

But sometime before the announcement, Barrett had switched her vote. Just four members of the court, the bare minimum, chose to grant, with Kavanaugh taking the side of Alito, Gorsuch and Thomas. They overrode five colleagues — including all the female justices — who had an array of concerns. The men appeared to be betting that Barrett would ultimately side with them in a case she had not wanted to take.

That July, with its audience before the court secure, Mississippi made the case more monumental, abruptly changing its strategy. “Roe and Casey are egregiously wrong,” the state’s main brief declared on its first page. It urged the justices to be bold.

As Scott Stewart, the Mississippi solicitor general, prepared for oral arguments that fall, he was urged by conservatives among the elite Supreme Court bar to mention a middle ground that might appeal to the chief justice and help ensure at least a partial victory.

The logic went like this: The state’s 15-week limit on abortions could be upheld without overturning Roe. That cutoff, broadly consistent with U.S. public opinion and practices in many other democracies, would still allow the majority of abortions.

That December, Stewart went big. The justices should “go all the way and overrule Roe and Casey,” he said.

Soon after, still probing for a narrower result, the chief justice asked the clinic’s counsel, “If it really is an issue about choice, why is 15 weeks not enough time?”

The clinic also took an all-or-nothing position. “States will rush to ban abortion at virtually any point in pregnancy,” responded Julie Rikelman, a lawyer for the clinic.

During oral arguments, some of the conservative justices showed little interest in the chief’s course. Barrett asked about adoption as an alternative to abortion. Alito pressed Rikelman with skeptical queries about the viability standard and the history of abortion rights.

Days later, the justices reassembled to take a preliminary vote. Five favored overturning Roe, meaning they seemed set to prevail. The chief would have allowed Mississippi’s 15-week ban — technically putting him in the majority — but would go no further. The three liberals would have upheld the lower courts’ invalidation of the law.

When the chief is on the prevailing side, he typically assigns opinions. But in this case, several people from the court said, the senior member of the majority — Thomas — assigned the opinion to Alito.

Now his mission was to keep his five votes together. Members of the court sometimes change their votes, which are not final until a decision is announced. When the speedy replies arrived in February, others at the court concluded that Alito had precirculated the draft opinion among his four allies, getting buy-in before sharing it with the full group of justices.

In mid-March, Roberts and Breyer continued trying to crack the coalition, making a last-ditch effort to save Roe. The chief’s middle position had potential power.

Because the six-vote majority was splintered — Roberts was willing to join the others in upholding the 15-week law but not in overturning Roe outright — the court’s rules required that at least five justices had to agree on the position for it to hold. Otherwise, the rationale resting on the narrowest grounds would prevail. That meant the chief needed to peel only one vote away from the conservative side to transform his losing compromise into the winning opinion — and save the constitutional right to abortion.

Breyer sought out Kavanaugh, growing passionate in his arguments. If they could win him over, Breyer even contemplated joining him and the chief in a 15-week position — restricting the right to abortion to help save it.

Meanwhile, even as the conservatives were seeking the chief’s vote, he was laboring over a concurring opinion he hoped would be persuasive. It was difficult to tell how open Kavanaugh was to changing his position, according to several people aware of the discussions. But he was listening to his colleagues.

On April 29, the chief justice informed his colleagues that the full draft opinion had been shared with Politico, according to people at the court then. On the following Monday evening, May 2, the news site published its story.

Along with jubilation from opponents of abortion, and anguish from supporters, came a shared question: Would this be the final decision? In a grim statement acknowledging the leak and announcing an investigation, the court said the draft “does not represent a decision by the court or the final position of any member on the issues in the case.”

But making the draft public had effectively cemented the votes. The leak investigation that followed was inconclusive.

At 10:10 a.m. on June 24, 2022, the court released its decision. Alito’s leaked draft, with some slight changes, had become the final word.

“Roe was egregiously wrong from the start,” he wrote, adding, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The nation erupted in protest and celebration.

This article originally appeared in The New York Times .