In the leaked draft opinion, Judge Samuel A. Alito Jr. wrote the majority decision to overturn Roe v. Wade, and four other Republican-appointed justices — Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted with him at the justices’ conference, according to Politico.
The news agency reported that Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were working on the dissents. It was unclear how Chief Justice John G. Roberts Jr. planned to vote.
Here’s what the justices and future Justice Ketanji Brown Jackson, who will be sworn in when Justice Breyer retires at the end of his term, said about Roe v. Wade:
Judge Samuel Alito
Justice Alito has always opposed legal abortion protections.
As a government lawyer applying for a promotion in the Reagan administration in 1985, he wrote that he was “particularly proud” of having helped advance the argument that “the Constitution does not protect the right to abortion”.
During his confirmation hearing in 2006, Judge Alito repeatedly said Roe was precedent that deserved respect, but declined to call it “established law”. He also wrote the majority opinion in a 2018 case that overturned a major Labor decision, including a 14-page discussion of “factors to consider when deciding whether or not to overturn a prior decision.”
Judge Amy Coney Barrett
Judge Barrett’s record shows her resolute opposition to abortion rights. In 2006, she signed a newspaper ad that supported reversing Roe’s “barbaric legacy”.
At her confirmation hearing in 2020, Judge Barrett said Roe was not a “super-precedent” or a decision considered so well-established that it could not be overturned. “That doesn’t mean Roe should be overturned, but descriptively it does mean that it’s not a case that everyone has accepted and isn’t calling it overturned,” she added.
Judge Stephen Breyer
Justice Breyer is a longtime proponent of abortion rights. “Roe v. Wade has been the law for 21 years or more,” he said during his confirmation hearing in 1994. “It’s the law.”
He also expressed strong disapproval of a Texas abortion law banning most abortions that went into effect in September. In an interview with NPR, Breyer described the US Supreme Court’s refusal to block the law as “very, very, very wrong.”
Judge Neil Gorsuch
During his 2017 hearing, Judge Gorsuch testified that Roe was precedent, and that part of the value of precedent is that it “adds to the determination of the law.” However, he voted against overturning laws that would restrict abortion in Texas last year and Louisiana in 2020.
Judge Elena Kagan
Justice Kagan dissented when the Supreme Court allowed the Texas law to take effect in September, criticizing the court’s practice of deciding important issues in rushed decisions without full briefing or argument, which the courts Supreme Court scholars call her “shadow case.”
Judge Kagan has also taken a hard line in upholding precedent, perhaps more so than any other current member of the court. “It is difficult to overstate the value, in a country like ours, of the stability of the law,” she said.
Judge Brett Kavanaugh
During his confirmation hearing in 2018, Judge Brett M. Kavanaugh called a woman’s right to an abortion “established law.” He called the court cases “precedent upon precedent” and said they could not easily be undone.
In 2003, however, he said he did not believe the abortion rights precedent should be considered a settled legal issue, writing, “I’m not sure all jurists refer to Roe as the established law of the land at the Supreme Court level. since the Court can always overrule its precedent, and three current judges of the Court would do so.
Justice Kavanaugh also supported abortion restrictions with some restraint. In 2019, for example, when the court temporarily blocked a Louisiana law restricting abortions, it issued a dissent that acknowledged the key legal precedent.
Chief Justice John Roberts
Chief Justice Roberts was in the majority when the court in 2007 upheld a federal law banning an abortion procedure. When the court struck down abortion restrictions in Texas in 2016, he dissented.
Although known for crafting narrow and progressive rulings, the chief justice recently voted in favor of some abortion rights.
Chief Justice Roberts voted to strike down a restrictive abortion law in Louisiana in 2020. In a concurring opinion, he identified what he said was the central tenet of Roe v. Wade: that women have the right to terminate their pregnancy before fetal viability.
In September 2021, he dissented when the court refused to block Texas law banning most abortions after six weeks, voting with the court’s three remaining liberals.
Judge Sonia Sotomayor
Justice Sotomayor has been the Supreme Court’s leading voice in favor of abortion rights since the death of Justice Ruth Bader Ginsburg. She also filed a dissent when the court refused to block the Texas law last year.
“The Court’s order is stunning,” she wrote. “Presented with a request to strike down a patently unconstitutional law designed to bar women from exercising their constitutional rights and escaping judicial review, a majority of justices chose to put their heads in the sand.”
Justice Clarence Thomas
Judge Thomas has been a staunch enemy of constitutional protection for abortion.
In 1992 he dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision, saying Roe was “demonstrably wrong” and “should be overturned.” In a 2000 dissent, he wrote, “Although a state may authorize abortion, nothing in the Constitution requires a state to do so.” In 2019, he called the decision “notoriously incorrect”.
Judge Ketanji Brown Jackson
During her confirmation hearing in March, Judge Ketanji Brown Jackson affirmed her position that Roe was “established law” and precedent in abortion cases.
She added that Roe was invoked and that trust is one of the factors the court considers when determining when to revisit a precedent.
Justice Jackson was confirmed last month and will join the Supreme Court when Justice Breyer retires at the end of his term.