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U.S. Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade is over 90 pages long. But Alito wasted little time getting to his key point.
"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," he wrote.
The entire draft opinion was leaked to Politico, an almost unheard-of breach of Supreme Court secrecy. In a statement, Chief Justice John Roberts said it was authentic as he called for an investigation into "this betrayal." The draft was written in February, and there could be small or significant changes as other justices weigh in before a final decision.
The outcome of this draft opinion would end the national right to an abortion and return to the pre-Roe world, where states set their own laws. The Mississippi law at the center of the court’s pending ruling banned abortion after 15 weeks, except to protect the life of the woman, or if there was "a serious risk of substantial and irreversible impairment of a major bodily function."
Alito drilled into abortion law history back to the 13th century. He dissected the Constitution’s key amendments, and the handful of times the Supreme Court rejected long-standing decisions.
Along the way, as any jurist would, he brought in facts. We examined several of them and found that Alito had a pattern of omitting details that might lead someone to reach different conclusions.
"At the time of enactment (of Mississippi’s law) only six countries besides the United States permitted non therapeutic or elective abortion-on-demand after the twentieth week of gestation."
This is partially accurate.
In a footnote, Alito lists Canada, China, the Netherlands, North Korea, Singapore and Vietnam, and then notes that another study added Iceland and Guinea-Bissau. But defining what constitutes a non-therapeutic, elective abortion is complicated. Many European nations, for example, have broad exceptions that allow abortions after the 20th week to protect the mother’s welfare. That group includes Germany, Great Britain, Norway, Ukraine, Spain and many others.
When Mississippi Gov. Tate Reeves made a related claim solely about European nations, we rated it Half True.
"At the time of Roe, 30 States still prohibited abortion at all stages. …. at the time of the adoption of the Fourteenth Amendment, over three quarters of the States had adopted statutes criminalizing abortion (usually at all stages of pregnancy)."
This history lacks important context.
Among other changes, the 14th Amendment said that no state shall "deprive any person of life, liberty, or property, without due process of law." It’s a powerful protection, and it’s been linked to abortion rights. The historians we reached said Alito’s numbers are largely correct, though by the time the 14th Amendment was ratified in 1868, doctors had been pushing for over a decade to criminalize abortion as part of a campaign to professionalize medicine.
"The doctors’ targets were midwives and others who were not licensed," said Peter Hoffer, professor of history at the University of Georgia. "It was necessary to protect the health of women, as abortion at that time was not a particularly safe procedure."
Early term abortions were common, said University of Illinois historian Leslie Reagan. Abortion bans might have been on the books, but they were largely ignored.
"They were prosecuted when women died," Reagan said. "In the rare case of a prosecution where no one died, juries usually nullified the law and refused to convict for the abortion itself."
There were also times when families sued abortionists for damages, and won, Reagan said.
"It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do."
Alito is correct that U.S. women turn out to vote at higher rates than men, which has been the trend over recent decades.
He was citing women’s higher turnout rates to argue that women "on both sides of the abortion issue" can influence the state legislative process by voting. In 2021, the trend in states was toward passing more abortion restrictions.
In 2020, the share of voting women was 68% and voting men was 65%, according to a Census Bureau survey. Researchers cite various reasons, such as that women "are more likely to rely on government services and are often more directly affected by highly debated issues like reproductive rights, child care/family leave, among others," Kelly Dittmar, a Rutgers political scientist, previously told PolitiFact.
Julie A. Wronski, associate professor of political science at University of Mississippi, however, said the argument misses context: "The context is that the types of women voting in (Mississippi) lean Republican. And abortion attitudes are polarized by party identity."
The due process clause of the 14th Amendment "has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation's history and tradition.’"
Alito was quoting in part from Washington v. Glucksberg, a 1997 U.S. Supreme Court ruling that found a state is permitted under the 14th Amendment to pass a law prohibiting assisted suicide.
The Washington state ruling said, in part: "First, the court has regularly observed that the clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. … An examination of our Nation's history, legal traditions, and practices demonstrates that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years."
But Alito ignores that the court hasn’t always held rights to that standard since the Glucksberg case, said Evan D. Bernick, Northern Illinois University College of Law professor and expert on the 14th Amendment. In Obergefell v. Hodges, the same-sex marriage case decided in 2015, the court didn't apply the Glucksberg test, he said.
In the ruling for the same-sex marriage case, Justice Anthony Kennedy said for the majority that some cases in the past about marriage — such as Loving v. Virginia, which ruled that laws banning interracial marriage were unconstitutional — did not rely on past historical preferences.
"Loving did not ask about a ‘right to interracial marriage,’" Kennedy wrote. "Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right."
"It is beyond dispute" that the legalization of abortion reduced the size of the Black population. "A highly disproportionate percentage of aborted fetuses are black."
Alito pointed to data from the Center for Disease Control and Prevention for 2019. It showed that 38% of women who had abortions were Black, 33% white, 21% Hispanic and 7% other.
The data are reported voluntarily by providers to state or area health departments and therefore information may be incomplete and result in undercounting abortions, notes Kaiser Family Foundation. The data excludes 23 reporting areas (states plus New York City) that did not report, did not report by race/ethnicity, or did not meet reporting standards.
Alito’s statement lacks context about why there are racial differences in abortion rates. Susan Cohen, a former vice president at the Guttmacher Institute, an organization that supports abortion rights, in 2008 wrote that anti-abortion activists have pointed to the race data "falsely asserting that the disparity is the result of aggressive marketing by abortion providers to minority communities."
Cohen wrote that the variation in abortion rates across racial and ethnic groups relates "to the variation in the unintended pregnancy rates across those same groups."
The National Black Women’s Reproductive Justice Agenda, a national group that supports reproductive rights, has said Black women are more likely to lack access to comprehensive sex education and contraception, and "as a consequence, they experience higher rates of unintended pregnancy than women of any other ethnic or racial group."
RELATED: What would state laws look like in a post-Roe world?
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Politico, Supreme Court has voted to overturn abortion rights, draft opinion shows, May 2, 2022
Kaiser Family Foundation, Reported Legal Abortions by Race of Women Who Obtained Abortion by the State of Occurrence, 2019
Census, Voting and Registration in the Election of November 2020 Table 4B, April 2021
Census, Quick facts for Mississippi, July 2021
Pew Research Center, About six-in-ten Americans say abortion should be legal in all or most cases, May 6, 2021
Gallup, Abortion trends by gender, 1975-2021
Guttmacher Institute, Abortion and Women of Color: The Bigger Picture, 2008
Leslie J. Reagan, When abortion was a crime: women, medicine, and law in the United States, 1867-1973, University of California Press, 1997
U.S. Supreme Court, Washington v. Glucksberg, 521 U.S. 702 (1997)
U.S. Supreme Court, Obergefell v. Hodges, 576 U.S. (2015)
Linda Greenhouse and Riva Siegel, Before Roe v. Wade, 2012
New York Times, Mississippi Voter Surveys: How Different Groups Voted, Nov. 3, 2020
National Black Women's Reproductive Justice Agenda, Fact sheet, 2016
PolitiFact, Are women disproportionately impacted by voter ID laws? Sept. 7, 2021
PolitiFact, Cynthia Meyer says more black babies are aborted in New York City than born, Nov. 25, 2015
Email interview, Evan D. Bernick, assistant professor of law, Northern Illinois University College of Law, May 3, 2022
Email interview, Loretta Kane, spokesperson for the National Black Women’s Reproductive Justice Agenda, May 3, 2022
Email interview, Gerard Magliocca, Indiana University law professor, May 3, 2022
Email interview, Kelly Dittmar, associate professor of political science, Rutgers-Camden Director of Research and Scholar, Center for American Women and Politics, Aug. 30, 2021 and May 3, 2022
Email interview, Julie A Wronski, associate professor of political science at University of Mississippi, May 3, 2022
Email exchange, Peter Charles Hoffer, research professor of history, University of Georgia, May 3, 2022
Interview, Leslie J. Reagan, professor of history, University of Illinois, May 3, 2022
Email exchange, Mary Ziegler, visiting professor of constitutional law, Harvard Law School, May 3, 2022
Email exchange, David S. Cohen, professor of law, Drexel University Kline School of Law, May 3, 2022