Behind the scenes of the dismantling of Roe v. Wade

The strategy was “to really put pressure on what this was going to mean, for the integrity of the court, to undo such a long-standing, individual, personal freedom and the chaos that it would cause,” said Nancy Northup, president of the court. from the Center for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line would only lead to Roe’s eventual demise, according to the clinic’s lawyers.

But defending Roe had special challenges. Its reasoning, based on the right to privacy allegedly implicit in the Constitution, has been widely criticized over the years, including by liberal scholars who supported abortion rights as a policy issue.

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

Justice Ginsburg also had doubts about the decision. During public appearances, she said the Supreme Court had “gone too far and too fast” in the ruling, and that she wished it had been based on a rationale of gender equality.

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

In saying that a 15-week limit would not give women enough time to decide the fate of their pregnancies, Judge Alito quoted a passage in her letter. “You’re saying there are no half measures here,” he said. “Is that an accurate understanding of your assignment?”

That was it, said Mrs. Rikelman.

Days later, the justices reconvened for a preliminary vote. Five favored overturning Roe, meaning they appeared likely to prevail. The chief would have allowed Mississippi’s fifteen-week ban — technically putting him in the majority — but wouldn’t go any further. The three liberals would have upheld the lower courts’ annulment of the law.

When the chef is on the dominant side, he usually issues opinions. But in this case, several people on the court said, the senior member of the majority — Justice Thomas — assigned the opinion to Justice Alito.

In his brief, Judge Alito wrote that Roe and Casey were legally flawed, that abortion rights had a limited history in the United States and that abortion destroyed what 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 rapid responses arrived in February, others at the court concluded that he had codified the draft opinion among his four allies, drawing support before sharing it with the full group of judges.