On the evening of May 2, 2022, Politico published something that had never happened in the Supreme Court's modern history: a complete draft majority opinion, months before the decision was due. The draft, written by Justice Samuel Alito and dated February 10, 2022, upheld Mississippi's 15-week abortion ban and overruled Roe v. Wade and Planned Parenthood v. Casey outright. Chief Justice Roberts confirmed it was authentic and ordered an investigation.
In this TalksOnLaw explainer, recorded days after the leak, Joel Cohen walks through the draft itself, not the politics: what Mississippi asked for, how Alito reasoned his way to overruling a half-century of precedent, and what the opinion's treatment of stare decisis might mean for other rights. The talk serves as a close reading of the reasoning that, seven weeks later, became the law.
The Question and the Answer
Mississippi's Gestational Age Act banned most abortions after 15 weeks, well before viability, and the state framed its request in binary terms: either uphold the law and overrule Roe, or strike it down. Cohen explains how Alito's draft organizes the country into three camps on abortion, then proceeds in three steps: whether the Fourteenth Amendment's guarantee of "liberty" includes a right to abortion, whether such a right is "deeply rooted" in the nation's history and tradition, and whether other constitutional sources, the Ninth Amendment, the privacy cases such as Griswold and Loving, or equal protection, could support it. On each, the draft says no.
History and Precedent
Cohen spends time on the draft's long historical section, which traces the criminalization of abortion at common law after "quickening" and under nineteenth-century state statutes, and on its treatment of precedent. Alito invokes the principle that stare decisis is "not an inexorable command," points to Brown v. Board of Education's overruling of Plessy, and appends a list of the Court's past reversals. He then applies a five-factor test: the nature of the error, the quality of the reasoning, workability, the effect on other areas of law, and reliance interests. The draft is scathing about Roe's reasoning and the viability line, calls Casey's undue-burden standard unworkable, and, in Cohen's reading, largely sidesteps reliance.
The Standard That Follows
With no constitutional right in play, the draft reviews Mississippi's law under rational-basis scrutiny, the most deferential standard in constitutional law. The state's interest in protecting fetal life is enough. Roe and Casey are overruled, and abortion regulation returns to the states.
What to Know Now
The final opinion in Dobbs v. Jackson Women's Health Organization, issued June 24, 2022, tracked the leaked draft closely: its structure, historical analysis, and five-factor stare decisis discussion survived almost word for word. The vote was 6–3 to uphold the Mississippi law and 5–4 to overrule Roe and Casey; Chief Justice Roberts concurred only in the judgment and would have upheld the 15-week ban without overruling Roe. The final opinion added responses to the joint dissent of Justices Breyer, Sotomayor and Kagan and to the Chief Justice, along with concurrences by Justices Kavanaugh and Thomas, the latter urging the Court to reconsider Griswold, Lawrence and Obergefell, a step the majority expressly disclaimed. In January 2023 the Court's Marshal reported that an investigation involving 97 employees could not identify the source of the leak, and no one has been identified since.
Four years on, abortion law is a patchwork. According to the Guttmacher Institute, as of mid-2026 thirteen states enforce total bans, most other states restrict abortion at some gestational point between six weeks and viability, and a number of states have added statutory or constitutional protections. Voters have weighed in directly: abortion-rights measures prevailed in every state where they appeared in 2022 and 2023, and in seven of ten states in 2024, including Missouri, which restored access; measures failed in Florida, Nebraska and South Dakota. The Supreme Court has returned to the subject only at the edges, dismissing a challenge to the FDA's approval of mifepristone for lack of standing in 2024, dismissing the Idaho emergency-care case the same year, and holding in Medina v. Planned Parenthood South Atlantic (2025) that Medicaid recipients cannot sue to challenge a state's exclusion of a provider. Litigation over mifepristone continues: in May 2026 the Court stayed a Fifth Circuit order that would have reinstated in-person dispensing requirements nationwide, and the FDA has opened a new safety review of the drug.
