Benefitting from an apparently unprecedented breach of Supreme Court confidentiality, Politico has obtained and published the first draft of a 67-page (plus Appendix) majority opinion written by Justice Alito in Dobbs v. Jackson Women's Health Organization. The draft opinion (full text) overrules Roe v. Wade. It reads in part:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely-- the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."...
The right to abortion does not fall within this category.
The draft opinion goes on to discuss the standards that should apply to challenges of state laws limiting abortion, saying in part:
Under our precedents, rational basis review is the appropriate standard for such challenges.... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.... These legitimate interests include respect for and preservation of prenatal life at all stages of development, ... the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
