E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

Alito’s leaked draft would overrule Roe and Casey not by banning abortion nationally, but by holding that abortion is not constitutionally protected. His reasoning was historical and precedent-based: no “deeply rooted” right, insufficient reliance, and an unworkable undue-burden test, leaving legislatures to act.

Overruling Roe would not simply “return abortion to the states”; Congress could still attempt a federal protection or ban, creating a separate constitutional fight over federal power. Meanwhile, at least a dozen states already had trigger laws poised to restrict abortion immediately if Roe fell.

The Politico document was only Alito’s February first draft, not proof that five justices had signed his opinion. Five had apparently voted to overturn Roe, but Roberts was pushing a narrower route and Kavanaugh or Barrett could still have altered how far the Court went.

The leak itself created an institutional trap for the Court. Goldstein said an earlier Wall Street Journal leak appeared aimed at locking in conservative votes, while the Politico disclosure may have sought to mobilize abortion-rights supporters; any retreat could then look like evidence that leaks and protests sway decisions.

The draft’s logic reached beyond abortion because contraception and same-sex marriage also rely on unenumerated privacy or substantive-due-process rights. Alito explicitly distinguished abortion because it involves fetal life, while Goldstein argued the broader reasoning could invite challenges; others in the discussion questioned whether those challenges would ultimately succeed.

The episode traces Roe’s vulnerability to a 50-year political project that finally gained the necessary Court votes after 2016. Howe emphasized Trump’s pre-election list of potential justices and abortion’s importance to single-issue conservative voters, while many abortion-rights supporters assumed Roe was too entrenched to disappear.

Ruth Bader Ginsburg had criticized Roe’s sweeping reach despite supporting abortion rights. In a 1992 article discussed on the show, she argued Roe halted a reforming political process and prolonged divisiveness, preferring a narrower ruling that allowed legislatures to continue working through the issue.

The hosts’ cited Gallup figures showed that binary pro-choice/pro-life labels concealed substantial support for conditional legality. They reported 48% favored abortion being legal only under certain circumstances, 32% under any circumstances, and 19% never, making specific limits the more informative dividing line.