5 tips from inside the overturn of Roe v. Wade

By the time the Supreme Court overturned Roe v. Wade last year, a draft of the ruling had been leaked to the press and the outcome was expected. The story behind the decision seemed obvious: The constitutional right to abortion had effectively died with Justice Ruth Bader Ginsburg, whose replacement, Amy Coney Barrett, was a favorite of the anti-abortion movement.

But that version is far from complete.

The New York Times has pieced together the hidden story behind this massive shift in the law, drawing on internal documents, contemporaneous notes and interviews with court insiders who had real-time knowledge of the events.

The article offers a rare glimpse into the unraveling of a constitutional right, with excerpts from the judges’ internal messages to each other. They include a 2016 memo on how the court should proceed after Senate Republicans vowed to block any nominee of President Barack Obama, and 2021 communications on a “shadow docket” case that all but struck down abortion rights in Texas and caused unrest within the court.

Here are five takeaways.

Barrett opposed taking the case.

Judge Barrett was chosen by President Donald J. Trump to gain a conservative supermajority on the court. Initially, in the justices’ private deliberations, she favored hearing the case Dobbs v. Jackson Women’s Health Organization, a fight over a Mississippi law banning most abortions after 15 weeks of pregnancy. Justices Samuel A. Alito Jr., Neil M. Gorsuch and Clarence Thomas wanted to move quickly and hear the case that spring.

Judge Barrett said the timing was wrong — she had been on the court for less than three months — and the others agreed to move the case to the next term.

But she later reversed herself and voted against hearing the case. A minority of the court, four male members, including Judge Brett M. Kavanaugh, gave it the green light anyway.

The court created distance from RBG’s death.

At Judge Kavanaugh’s suggestion, the court delayed announcing the case for months. In addition to postponing the case to the next term, the delay would buy time, allowing the justices to watch other abortion cases play out in lower courts, he told his colleagues.

Chief Justice John G. Roberts Jr. expressed concern that the court could look as if it had simply been waiting for a new judge arrive before taking on the challenge with Roe. The Kavanaugh plan, which gave the appearance of distance from Justice Ginsburg’s death, gave the public the impression that the justices were still debating even though the case had cleared the bar for moving forward.

Roberts and Breyer tried to save part of Roe.

The chief and Justice Stephen G. Breyer, a conservative and a liberal, teamed up to urge their newest colleagues — Justices Barrett and Kavanaugh — to withdraw support for hearing the case.

Judge Breyer, then 82, appealed to their relative youth: They still had decades on the bench ahead of them, and to maintain public confidence in the court, they needed to take a longer view. “Why the hurry?” he would ask.

Their push for compromise continued after the court heard oral arguments in December 2021. By then, Mississippi was not only asking for the 15-week ban, but also claiming that Roe v. Wade should be overturned.

Most of the conservative bloc was receptive. But the chief would only allow the fifteen-week ban and nothing more. Because of the court’s arcane rules, his middle position could prevail if he were to omit just one vote.

He and Judge Breyer appealed to Judge Kavanaugh. If they could win him over, Justice Breyer even considered joining them in supporting a 15-week ban — which could erode Roe’s protections so they wouldn’t be erased.

The leak made those efforts hopeless.

When Politico published a leaked draft of Justice Alito’s majority opinion in May 2022, the chief justice was working on a concurring opinion that he had hoped would persuade colleagues to the middle.

In a statement at the time, Chief Justice Roberts said that “the work of the court will not be affected in any way.” But behind the scenes, the leak hampered the search for compromises. The chief even hesitated to spread his views on the internal email list, which had become a list of suspects. Instead, he waited until new paper-only protocols were available.

A Ginsburg tradition was in jeopardy.

The Dobbs decision was released on June 24, 2022, officially overturning the constitutional right to abortion. The three liberal justices, who wrote a dissenting opinion in one voice, argued that the outcome “undermines the court’s legitimacy.”

Justice Breyer had requested that a summary of their dissents be read from the bench, which would evoke memories of Justice Ginsburg, who had used oral dissents as a form of protest. The chief said no: the Covid-era practice of releasing only written decisions still existed.

Months later, Justice Gorsuch urged the complete elimination of in-person opinion announcements, including oral dissents. Justices Alito, Barrett and Thomas told their colleagues they agreed.

Outnumbered liberals pushed back — “I think this would be a particularly unfortunate time to eliminate the practice of reading dissent,” Justice Elena Kagan wrote to her colleagues — and Justice Kavanaugh sided theirs. Ultimately, the tradition survived.