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Friday, December 15, 2023

Dismantling Roe

Dismantling Roe

The Supreme Court deliberates in secret. Insiders who speak can be cast out of the fold. Learning about the justices’ internal debates over cases can require decades-long waits for their papers to become public.

But today we’re publishing an inside account, by Adam Liptak and me, of how the justices overturned Roe v. Wade.

The answer has seemed obvious: Justice Ruth Bader Ginsburg, the court’s foremost defender of abortion rights, died and was replaced by Justice Amy Coney Barrett, a favorite of the anti-abortion movement.

That version is incomplete.

We discovered that Barrett, whom President Donald Trump appointed to lock in the court’s conservative supermajority, opposed even hearing the case. When the jurists were debating Mississippi’s request to hear it, she said the timing was wrong, and she eventually voted against granting the case. Four justices — the minimum necessary, and all of them male — greenlighted the lawsuit that the state of Mississippi had brought, Dobbs v. Jackson Women’s Health Organization.

Chief Justice John Roberts and Justice Stephen Breyer had also opposed the court’s taking the case, and they later worked together to narrow the results and preserve some portion of Roe v. Wade. Breyer, a lifelong liberal, was even willing to cut back the right to abortion in order to save it.

A leak cut off those hopes, our article shows. Whatever the leaker’s motive, Politico’s publication of Justice Samuel Alito’s draft opinion in May 2022 had the effect of cementing the votes in place.

Our story includes other revelations as well, including about how Ginsburg’s death hung over the case. The court delayed announcing its decision to hear the case, creating the appearance of distance from Ginsburg’s passing.

Our account is based on interviews with court insiders who had real-time knowledge of the events, notes, and documents. We’re also publishing excerpts from the justices’ internal messages to one another, so readers can see for themselves how court’s members communicate. As they take on one contentious issue after another — and wade right back into the abortion debate — we hope this article will help illuminate an institution that sets the rules for us all.

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