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Sent a lament to colleagues as Roe began to fall

Wanted a joint dissent read aloud — but was turned down

Considered shifting to the right to save Roe

Made a last-ditch attempt at compromise

Favored hearing the case — then changed her mind

Signed off on a 98-page draft opinion in 10 minutes

Wanted to move quickly and hear the case a term earlier

Was courted for a game-changing vote

Had to be hospitalized in the last lap of the case



Erin Schaff/The New York TimesIllustration by Matt Dorfman

This is the inside story of how the Supreme Court overturned the constitutional
right to abortion.

This is the inside story of how the Supreme Court overturned the constitutional
right to abortion.

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Most of the justices — including the woman chosen by President Donald J. Trump
to help undo it — opposed even hearing the case.

Most of the justices — including the woman chosen by President Donald J. Trump
to help undo it — opposed even hearing the case.

tk

The justices transformed a long-shot case into a historic turning point —
shooting down compromise and testing the boundaries of how the law is decided.

The justices transformed a long-shot case into a historic turning point —
shooting down compromise and testing the boundaries of how the law is decided.

tk

Behind the Scenes at the Dismantling of Roe v. Wade

Behind the Scenes at the Dismantling of Roe v. Wade

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BEHIND THE SCENES AT THE DISMANTLING OF ROE V. WADE

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By Jodi Kantor and Adam Liptak

Dec. 15, 2023

On Feb. 10 last year, Justice Samuel A. Alito Jr. 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 M. 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 M. 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, then the rare
Supreme Court decision that affects the entire country, reshaping elections, the
practice of medicine and a fundamental aspect of being female. The story of how
this happened has seemed obvious: The constitutional right to abortion
effectively died with Justice Ruth Bader Ginsburg, whom President Donald J.
Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.



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But that version is far from complete. Justice Barrett, selected to clinch the
court’s conservative supermajority and deliver the nearly 50-year goal of the
religious right, 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. Four male
justices, a minority of the court, chose to move ahead anyway, with Justice
Kavanaugh providing the final vote.

Those dynamics help explain why the responses stacked up so speedily to the
draft opinion in February 2022: Justice 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.

The Supreme Court deliberates in secret, and those who speak can be cast out of
the fold. To piece together the hidden narrative of how the court, guided by
Justice 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 — both conservative and liberal — 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, Justice 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 G.
Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer,
worked to prevent or at least limit the outcome. Justice Breyer even considered
trying to save Roe v. Wade — the 1973 ruling that established the right to
abortion — by significantly eroding it.

To dismantle that decision, Justice Alito and others had to push hard, the
records and interviews show. Some steps, like his apparent selective preview of
the draft opinion, were time-honored ones. But in overturning Roe, the court set
aside more than precedent: It tested the boundaries of how cases are decided.

Justice 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 kind of move that has
prompted dismissals of other cases.

The most glaring irregularity was the leak to Politico of Justice 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 Chief Justice Roberts and Justice Breyer’s quest to find a middle
ground.

In the Dobbs case, the court “barreled over each of its normal procedural
guardrails,” wrote Richard M. Re, a University of Virginia law professor and
former Kavanaugh clerk on a federal appellate court, adding that “the court
compromised its own deliberative process.”

In his opinion, Justice Alito wrote that the court was stepping away from the
abortion debate and intended to “return that authority to the people and their
elected representatives.” Since the court’s ruling, access to abortion has
dropped overall, with 21 states banning or restricting it and some others
reinforcing abortion protections.

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.



Justice Samuel A. Alito Jr.

Justice Ruth Bader Ginsburg

Inside the Supreme Court’s Dismantling of Roe - The New York Times


A RACE TO THE BENCH

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 that protection kicked in again.


Image
Black screens surrounded the Jackson Women’s Health Organization in 2021 to hide
the identities of women seeking abortions. The clinic’s battle with the State of
Mississippi led to Roe’s undoing.Credit...Rory Doyle/Reuters


“The state chose to pass a law it knew was unconstitutional to endorse a
decades-long campaign, fueled by national interest groups, to ask the Supreme
Court to overturn Roe v. Wade,” wrote Judge Carlton W. Reeves of Federal
District Court in Jackson as he struck down the law later that year.

He had been appointed by President Barack Obama; the U.S. Court of Appeals for
the Fifth Circuit, a famously conservative institution based in New Orleans,
affirmed the judge’s decision in 2019. “In an unbroken line dating to Roe v.
Wade, the Supreme Court’s abortion cases have established (and affirmed, and
reaffirmed) a woman’s right to choose an abortion before viability,” wrote Judge
Patrick E. Higginbotham, nominated by President Ronald Reagan.

Mississippi’s last option was an appeal to the Supreme Court, which seemed
unlikely to grant review. Mr. Trump had vowed to name justices who would
“automatically” overrule Roe, and he had already installed two conservatives.
But as long as Justice 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.



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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 multiple
types of cancer, broken ribs from a fall and pleas that she step down earlier so
Mr. Obama could appoint a like-minded successor. Now her pancreatic cancer had
spread, and the pandemic escalated the threat to her health.

Her assistants devoted themselves to protecting the justice, transforming her
home into a makeshift office, taking turns there and quarantining beforehand,
according to several people at the court then.

Justice Ginsburg, 87, mustered the strength to perform a wedding on Aug. 30.
Three days later, Mississippi’s appeal appeared on the agenda for the justices’
first conference of the term, in late September. With Election Day approaching,
she was willing herself to survive as long as possible, according to people
close to her.


Image

After she died in September 2020, Justice Ginsburg lay in state at the U.S.
Capitol.Credit...Erin Schaff/The New York Times


She lasted until Sept. 18. The timing of her death highlighted a singular
feature of the federal judicial system: The United States is the world’s only
major constitutional democracy without term limits or a mandatory retirement age
for its highest judges. The lifetime tenure granted to Supreme Court justices
means that laws affecting hundreds of millions of people can hang on the
happenstance of a single elderly citizen’s decline.

The arrival of a new justice can help refresh the law. But tying a dramatic
legal shift to the death of one particular justice can also erode trust in the
court.

“Whatever you think about how abortion rights should be resolved,” said David A.
Strauss, a University of Chicago law professor, “to resolve it this way, with a
deathbed watch on one old person, seems crazy.”


MORE ON ABORTION ISSUES IN AMERICA

 * March in Washington: A year after celebrating the reversal of Roe v. Wade,
   the annual March for Life gathered in the nation’s capital in a very
   different political climate.
 * Supreme Court Case: The Biden administration is in the middle of legal
   battles with Texas and Idaho over a law that requires hospitals to provide
   medically necessary care to stabilize patients in emergency situations, and
   the Supreme Court has agreed to hear the Idaho case. Here is what to know. 
 * Ballot Initiative: A coalition of reproductive-rights groups in Missouri
   kicked off a campaign to establish a right to abortion in the state
   constitution, setting up the nation’s next big test of public support for
   legalized abortion.
 * National Abortion Ban: Nearly three dozen House Republicans who supported a
   federal ban on abortion in the last Congress have yet to sign on this year,
   reflecting a shifting political calculus after the overturning of Roe v.
   Wade.

The previous death on the bench had produced unprecedented political
maneuvering. Immediately after Justice Antonin Scalia passed away in 2016, the
Senate majority leader, Mitch McConnell, refused to hold confirmation hearings
for any successor chosen by Mr. Obama. Days later, Chief Justice Roberts wrote a
previously undisclosed memo to his colleagues. His concern was how an evenly
divided court could resolve cases given that the vacancy seemed a long way from
being filled — “unfortunately,” he said.

“Depending on the outcome of the election of both the president and the Senate,
it may be some time after Inauguration Day before we even have a nominee, let
alone a new colleague,” he wrote. “I think it quite possible that we will be
operating as an eight-member court for over a year. In addition, the court will
unfortunately be the focus of heated partisan debate over the summer and into
the fall, which would be exacerbated if specific 4-4 cases were set to be
reargued when a new justice joins the court.”

Back then, Mr. McConnell had declared that the winner of the upcoming
presidential election, roughly nine months away, should make the appointment.
But in 2020, with another election less than seven weeks away, Mr. Trump and Mr.
McConnell sprinted a new justice onto the court.



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Days after Justice Ginsburg’s death, Mr. Trump nominated Justice Barrett, who
had once signed a statement against “abortion on demand.” Shortly after the
burial, grieving staff members were instructed to empty Justice Ginsburg’s
chambers. Justice Barrett was confirmed on Oct. 26, when early voting was
already underway in the election that would end Mr. Trump’s presidency.

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. For at least some of that
period, Justice Alito was doing the rescheduling, according to two people who
observed the process. To some at the court, he appeared to be waiting for his
new colleague to get settled. Justice Alito did not respond to a request for an
interview about his role in the case.

During confirmation hearings, she and every other justice had fielded ritual
questions about Roe, giving cautious answers. Justice Kavanaugh, facing a narrow
confirmation vote in 2018, had assured Democratic senators that he considered
Roe to be “settled as a precedent of the Supreme Court, entitled the respect
under principles of stare decisis,” or adhering to past decisions. Later,
Senator Susan Collins, a Republican abortion rights supporter, said he had told
her privately: “I am a don’t-rock-the-boat kind of judge. I believe in stability
and in the Team of Nine.”

Justice Alito, for his part, had long been open about two things: He wanted to
be on the Supreme Court — he joked about it in his Princeton yearbook — and he
believed Roe was wrong. In 1985, as Reagan administration lawyer, he helped
craft strategy to challenge state abortion laws. Later, he wrote that he had
helped advance “legal positions in which I personally believe very strongly,”
one of which was that “the Constitution does not protect a right to an
abortion.”


Image

Justice Alito vowed to be impartial on abortion at his confirmation hearings in
2006.Credit...Stephen Crowley/The New York Times


After President George W. Bush nominated him to the court in 2005, his mother
told reporters that he “still carries his Roman Catholic values” and “is against
abortion.”

At his confirmation hearings, Justice Alito was questioned about his 1985
assertion that the Constitution did not protect abortion. He told senators that
he would approach any questions about Roe no longer as a lawyer advocating an
outcome but as an impartial judge.



Justice Brett M. Kavanaugh

Justice Amy Coney Barrett

Inside the Supreme Court’s Dismantling of Roe - The New York Times


A BOLD REVERSAL

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
“conference”— the term for the justices’ private meetings, as well as the whole
group. That decision to grant review, or certiorari, requires at least four
votes. Tallies are not public. Even some ground rules are secret, codified in a
memo called “The Confidential Procedures of the Conference.”

That January day, the justices talked against a strange, scary backdrop: A
coronavirus surge was everywhere, and two days before, the court building was
emptied after a mob of Trump supporters overtook the Capitol, just across the
street.



Two decades after the Roe decision, the court in Planned Parenthood v. Casey had
given states some leeway to restrict abortion. But it reaffirmed what it called
Roe’s core rule: States could not ban the procedure before the point of
viability, or survival outside the uterus (currently about 23 weeks, near the
end of the second trimester). Ever since, the court had refused to reconsider
that line, making it “one of the most well-settled issues in the law,” as Mr.
Re, the law professor, put it.

Now 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.”



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At the 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. They couldn’t avoid a case like this, Justice
Kavanaugh told the group.

Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, he
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, and allow them to watch other abortion cases winding through lower
courts, according to two people aware of the discussion. His plan would also
suggest the court was still debating whether to go forward, even though a vote
had been taken — and create the appearance of distance from Justice Ginsburg’s
death.

Justices Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear
the case that term. Some justices questioned whether Justice Kavanaugh’s
proposal was appropriate: The case had been on the docket since September.

But Justice Barrett, the newest member of the court, made a strong stand. She
was the lone woman in the conservative bloc, with seven children and personal
views on abortion that were no secret. Of the nine people in black robes, she
was the sole mother.

This was not the time, she told Justice Alito, according to two people aware of
the comment. She had arrived not even three months before. If the others
intended to hear the case that term, she said, she would change her vote to
oppose taking it.

The chief also expressed concern, saying the court could look as if it had been
waiting for a new justice to take on a challenge to Roe. Justice Alito,
seemingly worried that a delay could affect the outcome, asked Justice Kavanaugh
if his vote was solid, to which the younger man said yes.

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.
Justices Alito and Thomas were in their 70s, and the new conservative
supermajority would not last forever.

“If the court somehow ends up failing to grant certiorari in Dobbs, there will
justifiably be staggering disappointment with any conservative justices who
failed to provide the needed votes,” Ed Whelan, a legal commentator and former
Scalia clerk, wrote in April of 2021, ten months after the petition was filed.

In the conservative legal movement, which felt burned by defections by
Republican appointees, Justice 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. As his name had surfaced on a
shortlist for the court, supporters of potential rivals attacked him in an
anonymous memo claiming he showed a pattern of “abandoning conservative
principles.”

Still, the right closed ranks around him after his nomination, especially after
he was accused of long-ago sexual misconduct, which he vehemently denied.



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The court’s delay tactic on Dobbs opened a door for possible persuasion. Chief
Justice Roberts and Justice Breyer, who were both drawn to consensus, were
hoping to persuade their two newest colleagues to reconsider their support for
hearing the case.



Justice Breyer was sometimes dismissed by other liberals as an overly optimistic
institutionalist who underestimated the ambitions of the conservative majority.
But inside the building, he had formed strong ties with the justices on the
right. (When Justice Alito arrived, Justice Breyer charmed him with a surprise
visit from the Phillie Phanatic, mascot of his favorite baseball team.) “They
like him,” said one conservative who worked at the court then. “He’s like your
favorite law professor.”

Arguments for abortion rights that were rooted in women’s equality and autonomy
appeared unlikely to win over the conservatives. But his argument about Dobbs
and abortion had become broader, stressing a need to respect precedent and guard
the court’s legitimacy.

In a speech at Harvard Law School and in private entreaties, Justice Breyer,
then 82, played to the generational split among his conservative colleagues.
Justice Kavanaugh was in his mid-50s, with decades on the bench before him.
Justice Barrett was just 48. To maintain Americans’ trust in the court, he
urged, the newcomers should take the long view.

“What’s the rush?” he would ask, according to several people at the court then.
“Why would you do it first thing after you get on the court?”


Image

President Donald J. Trump picked Justice Barrett in 2020 to replace Justice
Ginsburg.Credit...Al Drago for The New York Times


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, Justice Barrett had switched her vote.
Just four members of the court, the bare minimum, chose to grant, with Justice
Kavanaugh taking the side of Justices 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 Justice Barrett would ultimately
side with them, pushing her into a case she had not wanted to take.

Her reasons for the reversal are unclear. But as a professor in 2013, she had
written a law review article laying out the kind of dilemma she faced in spring
2021. “If the court’s opinions change with its membership, public confidence in
the court as an institution might decline,” she noted. “Its members might be
seen as partisan rather than impartial and case law as fueled by power rather
than reason.”

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. “The question becomes whether this court should overrule those
decisions. It should.”



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At times the court has considered such shifts problematic — even dismissing the
central question in a case, as it did in 2015, and the entire dispute, as it did
in 2016. Later, in his opinion, the chief justice criticized Mississippi’s
switch. But even if he or others moved to reject the case, the votes did not
appear to be available.

The author of the brief that transformed Dobbs into a full assault on Roe, Scott
Stewart, the newly appointed solicitor general of Mississippi, was a former law
clerk who, like many others, maintained close ties to the court.

The month it was filed, Justice Thomas and his wife, Virginia, held a gathering
for his former clerks and their families at a West Virginia resort. Mr. Stewart,
who had worked for the justice from 2015 to 2016, was among them. He had
attended reunions in previous years, and now he was about to argue his first
case — one of surpassing importance — before his former boss and the other
justices.

Jeffrey L. Fisher, a Stanford law professor who helped represent the abortion
clinic in the case, was struck when he read Mississippi’s brief. “The state’s
going for the jugular,” he remembers thinking. “This is it.”



Justice Clarence Thomas

Justice Sonia Sotomayor

Inside the Supreme Court’s Dismantling of Roe - The New York Times


COUNTDOWN TO MIDNIGHT

But the fall of Roe began even sooner. In late summer 2021, with both sides in
Dobbs preparing their arguments, a case from Texas raced ahead, causing a
last-minute scramble inside the court.

Chief Justice Roberts and Justice Alito had arrived at the court just months
apart, appointed by the same Republican president, and in their early years
often voted together. But the chief was dominant — as the court’s leader, head
of the federal judiciary and custodian of his institution’s authority and
reliability, roles that tempered his fundamentally conservative instincts at
times.

“It is a jolt to the legal system when you overrule a precedent,” he had said at
his confirmation hearings. “Precedent plays an important role in promoting
stability and evenhandedness.”

He objected to claims that judges were partisans, and advocated steadiness. In
2012, he cast a vote to save Mr. Obama’s Affordable Care Act, infuriating many
conservatives.

Now, nearly a decade later, the Trump nominees had arrived, and Justices Alito
and Thomas were gaining the upper hand. The chief, who has limited authority
over his fellow justices, was losing his ability to cultivate restraint and
found himself in a lonely position: as a conservative ally to his three liberal
colleagues in preserving at least some abortion rights. In the final days of
August 2021, the justices considered a law designed to shatter those
protections.



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Abortion providers were asking the court to block a new Texas law that was
intended to all but abolish the procedure in the state, banning it beyond about
six weeks of pregnancy. The law had been contrived to evade federal review,
including from the Supreme Court. In an end run, its authors assigned
enforcement not to state officials but to private individuals, who could sue
anyone who performed or helped with abortions, from doctors to Uber drivers.

To make matters more fraught, the challenge to the Texas law arrived in an
emergency application, part of the “shadow docket” through which the justices
made rapid calls with little public explanation. The new law was set to go into
effect in less than two days, the moment the calendar turned to Sept. 1. Unless
the justices acted, Roe would effectively be overturned in the second-largest
state in the country.

On the afternoon of Aug. 31, during the court’s summerlong break, Justice Alito
emailed his colleagues a memo arguing against intervening, according to notes on
the discussion. The justices’ hands were tied, the lawsuit was flawed and their
decision was not a judgment on the constitutionality of the law, he wrote.
Justices Thomas, Kavanaugh and Barrett agreed, with the new justice honing the
language of what the court’s response might say.

But the chief put up a fight. “It is certainly arguable (and argued here) that
the existence of the law itself operates to chill the exercise of a recognized
constitutional right,” he wrote, according to the notes, and it could have
far-reaching implications. He wanted to pause the ban and figure out how to
proceed. Justices Breyer, Kagan and Sotomayor took his side, resulting in four
votes to intervene.

With just a few hours until midnight, the court was split 4-4. One justice had
not voted: Neil Gorsuch.

There would be no word from him that evening, Justice Alito reported to his
colleagues. Later, Justice Gorsuch declined to comment to The Times.

Nothing that happened afterward affected the outcome. The next afternoon,
Justice Gorsuch voted against intervening. The chief justice made one last
argument to block the law but failed, according to the notes. The court
announced its decision; the litigation continued to play out for months,
reaching the justices again for a fuller hearing, but the statute stayed intact.


Image

A protest in Texas against a 2021 abortion law that preceded the Supreme Court’s
decision on Roe.Credit...Jay Janner/Austin American-Statesman, via Associated
Press


That summer night in 2021, Roe was partially undone.

Minutes before the deadline, Justice Sotomayor had protested that the court was
not weighing in publicly before the law went into effect. She sent a plaintive,
one-line memo to the conference, addressed to Justice Alito.



“What a pity that we cannot do the right thing,” she wrote.



Chief Justice John G. Roberts Jr.

Justice Stephen G. Breyer

Inside the Supreme Court’s Dismantling of Roe - The New York Times


15 WEEKS

That fall, the lawyers in the Dobbs case were rehearsing for their appearance
before the justices, each side doing an extraordinary eight rounds of moot court
exercises. As Mr. Stewart, the Mississippi solicitor general, prepared for his
turn at the lectern during oral arguments, 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. The state’s brief did devote a few pages to the possibility.

That December, in a sparsely filled courtroom under Covid-19 restrictions, Mr.
Stewart brushed off the advice he had gotten and 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.



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The strategy was “to really put pressure on what this was going to mean, for the
integrity of the court, to reverse such a longstanding, individual, personal
liberty, and the chaos that it was going to create,” said Nancy Northup,
president of the Center for Reproductive Rights, which represented the clinic,
in an interview. Any erosion of the viability line, the clinic’s lawyers felt,
would only lead to the eventual undoing of Roe.

But defending Roe had particular challenges. Its reasoning, based on a right to
privacy said to be implicit in the Constitution, had been widely criticized over
the years, including by liberal scholars who supported abortion rights as a
matter of policy.

“It is not constitutional law,” wrote John Hart Ely, in The Yale Law Journal in
1973, “and gives almost no sense of an obligation to try to be.”

Justice Ginsburg, too, had qualms about the decision. In public appearances, she
said that the Supreme Court had “moved too far, too fast,” in the ruling, and
that she wished it had been based on a gender-equality rationale.

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

When she said a 15-week limit would not give women enough time to decide the
fate of their pregnancies, Justice Alito cited a passage in her brief. “You say
that ‘there are no half-measures here,’” he said. “Is that a correct
understanding of your brief?”

It was, Ms. Rikelman said.

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
— Justice Thomas — assigned the opinion to Justice Alito.

In his draft, Justice Alito wrote that Roe and Casey were legally unsound, that
abortion rights had only a limited history in the United States and that
abortion destroyed what the Mississippi law called the life of an “unborn human
being.”

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
he had precirculated the draft opinion among his four allies, getting buy-in
before sharing it with the full group of justices.



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Justice Alito had a special reason to fear defection. In 1992’s Casey decision,
many observers thought the court — with eight justices, including Justice
Thomas, appointed by Republican presidents — would overturn Roe. Five initially
favored doing so, according to legal historians.

But Justices Sandra Day O’Connor and David H. Souter secretly persuaded Justice
Anthony M. Kennedy to join a middle-of-the-road opinion. Those justices
permitted more restrictions on abortion but saved the overall right, shifting it
from its controversial privacy rationale to one focused on liberty.

Justice Alito knew the story well, because he had heard Casey as an appeals
court judge. Now, the loss of even one member of the Dobbs majority would mean
defeat, for the case and the conservative legal movement.

“If the court fails to overrule Roe, the ruling will likely shatter the
movement,” J. Joel Alicea, a Catholic University law professor and former Alito
clerk, wrote in an essay at the time.

In mid-March, the conservative majority learned something worrisome: Justice
Thomas was hospitalized for an unspecified infection that was not Covid. He
would be released in a day or two, a court statement said. Instead he spent a
week in the hospital. He recovered, but it was a reminder that no one knew how
long the conservative supremacy might last.

Around the same time, another risk emerged: The chief and Justice Breyer
continued trying to crack the coalition, making a last-ditch effort to save Roe.
For years, Justice Kavanaugh’s career had trailed the chief’s, the two becoming
allies and friends, often voting together and even playing in the same poker
game. Though some conservative critics cast the chief as a turncoat when he
sided with liberals, Justice Kavanaugh publicly praised him as a role model.

The chief’s middle position had potential power. Because the six-vote majority
was splintered — he 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. (The chief’s efforts were reported earlier by CNN.)



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Justice Breyer sought out Justice Kavanaugh, growing passionate in his
arguments. If they could win him over, Justice Breyer even contemplated joining
him and the chief in a 15-week position, according to people familiar with his
thinking. The move — restricting the right to abortion to help save it — might
have outraged liberals. But for Justice Breyer, who had just announced his
retirement, it would have been a parting statement about how the justices can
address contentious questions.

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 Justice Kavanaugh was to changing his position,
according to several people aware of the discussions. But he was listening to
his colleagues.

On April 27, after hearing the last argument of the term, Chief Justice Roberts
paused for a moment of recognition. This would be Justice Breyer’s final
appearance after 28 years on the court. As the chief saluted “the privilege of
sharing this bench” with his friend, he choked up with emotion.


Image

The final opinion in Dobbs vs. Jackson Women’s Health Organization, left, and
the draft that was leaked to the news organization Politico.



AN END TO COMPROMISE

That week, the first public hints about the chief’s efforts emerged, with the
Wall Street Journal editorial board writing that he “may be trying to turn
another justice now.” The targets were Justices Barrett and Kavanaugh, the
article said.

In other relatively recent cases — the 2012 Obamacare case and a 2020 case about
gay and transgender rights — similar warnings had appeared in conservative media
outlets, apparently to try to prevent justices on the right from splitting off
to join liberals. In the health care matter, some information appeared to have
dribbled out of the court.

But the leak of the Alito draft turned into a violation of a different order. On
April 29, the justices gathered for their Friday conference meeting.
Traditionally, they ate lunch together afterward in their dining room, and this
time they had planned a birthday toast for Justice Kagan, who had turned 62 the
day before.

Sometime during those hours, the chief justice informed his colleagues that the
full draft 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.

Mr. Stewart, the Mississippi solicitor general, was walking his dog in Jackson
when he found out his side seemed set to win the historic case. One of the
lawyers for the clinic was parking her car in Brooklyn when she heard the news.
The clinic’s owner and director were changing planes in Atlanta when word
flashed on television screens. Millions of other Americans were commuting home
or eating dinner when they learned the Supreme Court appeared ready to rule
against the constitutional right to abortion.


Image

After the draft leak, an abortion-rights demonstrator outside the Supreme Court
held up a hanger with the words “Never again.”Credit...Kenny Holston/The New
York Times

Image

A protester outside the court taped her mouth to evoke what anti-abortion
activists call the silencing of children who will not be born.Credit...Kenny
Holston/The New York Times


Along with jubilation from abortion opponents, 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.”

“The work of the court will not be affected in any way,” the chief justice
added.

Behind the scenes, that did not turn out to be true. Whatever the intent, the
breach became a strike on the chief, Justice Breyer and their quest for
compromise, said several people from the court. The chief worried whether he
could even share his concurring opinion on an email list that had become a
roster of suspects, waiting until new, paper-only protocols were in place.

The fact that the entire draft had been leaked, not just the outcome, raised the
possibility that someone had tried to either expose the language or seal it.
Pending votes were secret in part to allow justices to change their minds, and
making the draft public had effectively cemented the votes.

The leak investigation that followed was inconclusive and drew complaints that
it was unfair. The justices talked to the court’s marshal but were not subjected
to scrutiny as clerks and other employees were, the marshal later acknowledged.

Some conservative commentators theorized that a liberal had shared the draft to
raise alarms. On the internet, accusers on the right attacked some of the clerks
for liberal justices, posting speculative theories along with their names and
photographs. (Later, investigators found “nothing to substantiate” the
accusations.)


Image

A form given to Supreme Court employees during the leak investigation, asking
for passwords to their devices and online accounts.Credit...


The marshal’s office presented a form to the clerks, later obtained by The
Times, that spurred panic. The young lawyers, dependent on court relationships
for future jobs, were asked for access to their personal phones; location data
going back nearly a year; and emails, texts, voice messages and photos.

Investigators could search for any references to abortion, criticism of the
Supreme Court, mentions of court procedures and “any contact of any kind with or
concerning reporters or media organizations.” It is not clear whether clerks
signed the form: At least some sought legal advice and negotiated limits.

Amid all the procedural questions surrounding Dobbs, “the leak is the biggest
potential stain on the case, especially if it was intended to influence
deliberations,” said William Baude, a University of Chicago law professor and
former clerk to Chief Justice Roberts. “But because the motive and culprit are
unknown, it’s been hard to evaluate.”



Justice Neil M. Gorsuch

Justice Elena Kagan

Inside the Supreme Court’s Dismantling of Roe - The New York Times


REGISTERING DISSENT

At 10:10 a.m. on June 24, 2022, near the end of the term, the court released its
decision. Justice 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.

The dissent was unusual, written by the three liberal justices in unison.
Overturning Roe and Casey “undermines the court’s legitimacy,” they wrote, a
grave statement from Justice Breyer, who had spent years defending the
institution to critics.

He had asked the chief if a summary of the three justices’ dissent could be read
aloud, a practice reserved for when those in the minority felt most strongly.
The request evoked the memory of Justice Ginsburg, who had deployed oral
dissents as a form of protest, even wearing a special collar over her robe.

Months later, reading dissents aloud would be challenged, according to a record
of the discussion. As the pandemic abated and Justice Ketanji Brown Jackson
settled into the court, Justice Gorsuch pushed to maintain the Covid-era
practice of dispensing only written decisions. He wanted to skip in-person
decision announcements altogether, including oral dissents, which he argued were
often misleading. The public would gain respect for the court by focusing on
written opinions, he said. Justices Alito, Barrett and Thomas responded that
they agreed.



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The outnumbered liberals, now all female, stood to lose the most. “I think this
would be a particularly unfortunate time to eliminate the practice of reading
dissents,” Justice Kagan wrote to her colleagues. Justice Kavanaugh agreed with
them, and after further discussion, the group decided that the tradition would
survive.

But it did not apply to Dobbs. The chief had turned Justice Breyer down.
Decisions at that time were still being released online, not in person.

Within hours of the announcement, abortion clinics in some states had to close.
But Mississippi had a 10-day interim period. As the clock counted down, a single
doctor at the Jackson clinic tried to serve everyone. The medical team there had
been unusually busy ever since abortion had been all but banned in Texas. Now,
patients came from Alabama, too.

On July 6, the clinic performed its final abortion. The pink building was
painted white and turned into a home décor store. But the phone lines stayed
open. For months afterward, women who had not gotten the news about the
justices’ decision in Washington were still calling.

Julie Tate contributed research. Produced by Rumsey Taylor and Josh Williams.



Jodi Kantor is a Pulitzer Prize-winning investigative reporter and co-author of
“She Said,” which recounts how she and Megan Twohey broke the story of sexual
abuse allegations against Harvey Weinstein, helping to ignite the #MeToo
movement.   Instagram • More about Jodi Kantor

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal
developments. A graduate of Yale Law School, he practiced law for 14 years
before joining The Times in 2002. More about Adam Liptak

A version of this article appears in print on Dec. 17, 2023, Section A, Page 1
of the New York edition with the headline: Behind the Scenes at the Dismantling
of Roe. Order Reprints | Today’s Paper | Subscribe
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