Supreme Court Justice Samuel Alito has become the justice most identified with a leaked draft decision that would make access to abortion a state decision rather than a national right.

Alito wrote the draft decision, which Chief Justice John Roberts confirmed is authentic. Legal scholars stress the draft decision overturning Roe v. Wade could still change substantially before being issued, a move expected in late June.

Nominated by President George W. Bush for a seat on the high court in late 2005, the 72-year-old justice's stance on abortion access has been well-known since at least 1985. Then, on his job application for a position at the Justice Department, he wrote that “the Constitution does not protect a right to an abortion."

The substance of Alito's statement from over three decades ago is now reflected in the leaked draft opinion for Dobbs. v. Jackson Women’s Health Organization, signaling a majority of the court's six Republican-appointed justices ruling Mississippi can maintain its law banning abortion after 15 weeks of gestation.

The draft opinion, which the high court has called "authentic" despite clarifying it is not the final ruling, would have significant ramifications for the 1973 case of Roe v. Wade and the 1992 case Planned Parenthood v. Casey if a majority of justices sided with Alito.


University of Notre Dame law professor Sherif Girgis, a former Alito clerk, told the Washington Examiner that "Justice Alito has a history of writing very thorough opinions that deal with many different complex arguments."

"The justices seem to prefer having more senior justices write the really big-deal opinions," Girgis said, adding that Justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch, all appointed under President Donald Trump, could be ruled out according to that reasoning.

And if Roberts, another Bush appointee, was not of the mindset to overhaul Roe completely, "then that's a good explanation of why he didn't write. Because the five who were on board would have wanted to write a separate opinion that would then command a majority anyway."

Justice Clarence Thomas, who has spent the longest time on the nine-member bench, would "presumably have the assignment power," Girgis said. Though he described Thomas, nominated and confirmed to the Supreme Court in 1991, as having "views about substantive due process that he's unlikely to get four other votes for."

Alito's seniority, alongside his ability to write carefully-crafted critiques of precedent that show not only why he thinks they're wrong, but his explanation for why they're "egregiously wrong ... is always relevant to making the case for overturning the precedent," Girgis said.

The justice notably wrote the court has "long recognized" that stare decisis, the legal principle that courts follow precedent, is "'not an inexorable command,' and it ‘is at its weakest when we interpret the Constitution,'" according to a copy of the draft opinion.

Since the leaked draft opinion, there has been a national outcry among abortion activists voicing the need to protect Roe and Casey. Monday's leak sparked a near-instantaneous protest outside the court during the same evening. Large unscalable fences were placed outside the high court in response to continued protests Wednesday night while the nation awaits the final opinion that could come anytime between now and the end of June.

Amid the fallout of what Roberts described as "a singular and egregious breach" of the high court, Alito canceled his plans for an appearance in the 5th U.S. Circuit Court of Appeals judicial conference, slated to begin Thursday, for reasons not yet disclosed.

Meanwhile, a pro-abortion rights protest group that claims to carry on the legacy of the late Supreme Court Justice Ruth Bader Ginsburg said it would fund protesters to participate in demonstrations next week outside the homes of the six Republican-appointed justices in response to the court's expected ruling to overturn Roe.


Democratic leaders in the Senate have scheduled a vote next week in an effort to codify Roe, though, without the support for ending the filibuster rule from Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), the bill is unlikely to pass given the 60-vote threshold needed.

An overturning of Roe signals abortion likely becoming illegal in at least 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. There are at least 22 states set to ban or limit abortion access immediately if the draft opinion remains relatively the same once it becomes finalized.