How Roe v. Wade Ruling Changed from Leaked Draft

The U.S. Supreme Court has overturned the landmark 1973 case Roe v. Wade which had found that a woman's right to abortion was protected under the 14th Amendment of the Constitution.

The Court issued its opinion in Dobbs v. Jackson Women's Health Organization on Friday and a majority of the justices officially overturned the precedent set down by their predecessors almost 50 years ago.

Associate Justice Samuel Alito authored the majority opinion and that opinion was joined by Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts wrote a concurring opinion as did Thomas and Kavanaugh.

The justices' decision has been the subject of fraught speculation for months. That speculation intensified on May 2 when Politico published a leaked draft majority opinion authored by Alito that showed a majority of the Court had decided to overturn Roe and the 1992 case Planned Parenthood v. Casey, which upheld Roe's "essential holding."

The Court's final opinion, delivered by Alito, is not fundamentally different from the leaked draft that was made public last month, though there are additions that would be expected before final publication.

Perhaps the most obvious addition is the syllabus or headnote—a form of summary that appears at the very beginning of the opinion and outlines the details of the case and how the Court approached it.

The syllabus also summarizes the Court's finding, in this case: "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."

The final version of the opinion also contains additional paragraphs where Alito has responded to the dissenting opinion filed by Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

"The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation," Alito wrote of the dissenting opinion.

"Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy," Alito went on, referring to the time when a pregnant person first feels a baby's movement in the womb.

He said the dissent's "failure to engage with this long tradition is devastating to its position."

The dissent would not have been available for Alito to critique when he wrote the draft opinion and it is normal for the majority opinion to address any dissent the minority has offered.

Alito also goes on to address the concurrence offered by Chief Justice Roberts. A concurring opinion means the justice in question agreed with the majority's opinion, but disagreed with the rationale behind it, according to Cornell Law School's Legal Information Institute.

In addressing Roberts' concurrence, Alito notes that it "reproves us for deciding whether Roe and Casey should be retained or overruled" and criticizes the concurring opinion, though he notes it is "moved by a desire for judicial minimalism."

In addition to the syllabus and commentaries on the dissent and concurrence, the final opinion has undergone a relatively large number of other minor changes. Footnotes have been deleted or added, some sentences have been moved or small additions made and there has been a review of general spelling, grammar and formatting.

Nonetheless, the substance of the Court's opinion is fundamentally the same as the leaked draft and the central reasoning has not changed.

Supreme Court Protest
In this combination image, Anti-abortion activists (R) clash with abortion-rights activists (L) during a rally in front of the Supreme Court on June 23, 2022 in Washington, DC and Associate Justice Samuel Alito (Inset). The Court has overturned the landmark 1973 abortion ruling Roe v. Wade.