Behind the scenes at the dismantling of Roe v. Wade

On Feb. 10 last year, Justice Samuel Alito showed his eight colleagues how he intended to uproot the constitutional right to abortion.

At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women's Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document's length, Justice Neil Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.

In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald Trump replaced with Barrett, a favorite of the anti-abortion movement.

But that version is far from complete. Barrett, selected to clinch the court's conservative supermajority and deliver the nearly 50-year goal of the religious right, opposed even taking up the case. When the jurists were debating Mississippi's request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. Four male justices, a minority of the court, chose to move ahead anyway, with Kavanaugh providing the final vote.

Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.

The Supreme Court deliberates in secret, and those who speak can be cast out of the fold. To piece together the hidden narrative of how the court, guided by Alito, engineered a titanic shift in the law, the New York Times drew on internal documents, contemporaneous notes and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings. Because of the institution's insistence on confidentiality, they spoke on the condition of anonymity.

To dismantle that decision, Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.

Ginsburg's death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.

The most glaring irregularity was the leak to Politico of Alito's draft. The identity and motive of the person who disclosed it remain unknown, but the effect of the breach is clear: It helped lock in the result, the Times found, undercutting Roberts and Breyer's quest to find a middle ground.

In the Dobbs case, the court "barreled over each of its normal procedural guardrails," wrote Richard Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that "the court compromised its own deliberative process."

In his opinion, Alito wrote that the court was stepping away from the abortion debate and intended to "return that authority to the people and their elected representatives." Since the court's ruling, access to abortion has dropped overall, with 21 states banning or restricting it and some others reinforcing abortion protections.

A race to the bench

In March 2018, when Mississippi legislators banned most abortions after 15 weeks of pregnancy, the law looked like little more than a doomed symbolic gesture.

The state's one remaining abortion clinic, Jackson Women's Health, had already outlasted protesters, a governor who had vowed to close it and so much opposition that its director had pursued her own law degree. For all those years, Roe had shielded the clinic. Now that protection kicked in again.

"The state chose to pass a law it knew was unconstitutional to endorse a decadeslong campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade," wrote Judge Carlton W. Reeves of U.S. District Court in Jackson as he struck down the law later that year.

He had been appointed by President Barack Obama; the 5th U.S. Circuit Court of Appeals, a famously conservative institution based in New Orleans, affirmed the judge's decision in 2019. "In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and reaffirmed) a woman's right to choose an abortion before viability," wrote Judge Patrick E. Higginbotham, nominated by President Ronald Reagan.

Just as Mississippi's petition arrived at the court in June 2020, however, the justice's health was worsening. She had remained on the bench despite multiple types of cancer, broken ribs from a fall and pleas that she step down earlier so Obama could appoint a like-minded successor. Now her pancreatic cancer had spread, and the pandemic escalated the threat to her health.

Her assistants devoted themselves to protecting the justice, transforming her home into a makeshift office, taking turns there and quarantining beforehand, according to several people at the court then.

Ginsburg, 87, mustered the strength to perform a wedding on Aug. 30. Three days later, Mississippi's appeal appeared on the agenda for the justices' first conference of the term, in late September. With Election Day approaching, she was willing herself to survive as long as possible, according to people close to her.

She lasted until Sept. 18. The timing of her death highlighted a singular feature of the federal judicial system: The United States is the world's only major constitutional democracy without term limits or a mandatory retirement age for its highest judges. The lifetime tenure granted to Supreme Court justices means that laws affecting hundreds of millions of people can hang on the happenstance of a single elderly citizen's decline.

The arrival of a new justice can help refresh the law. But tying a dramatic legal shift to the death of one particular justice can also erode trust in the court.

The previous death on the bench had produced unprecedented political maneuvering. Immediately after Justice Antonin Scalia died in 2016, the Senate majority leader, Mitch McConnell, refused to hold confirmation hearings for any successor chosen by Obama. Days later, Roberts wrote a previously undisclosed memo to his colleagues. His concern was how an evenly divided court could resolve cases given that the vacancy seemed a long way from being filled — "unfortunately," he said.

"Depending on the outcome of the election of both the president and the Senate, it may be some time after Inauguration Day before we even have a nominee, let alone a new colleague," he wrote. "I think it quite possible that we will be operating as an eight-member court for over a year. In addition, the court will unfortunately be the focus of heated partisan debate over the summer and into the fall, which would be exacerbated if specific 4-4 cases were set to be reargued when a new justice joins the court."

Back then, McConnell had declared that the winner of the upcoming presidential election, roughly nine months away, should make the appointment. But in 2020, with another election less than seven weeks away, Trump and McConnell sprinted a new justice onto the court.

Days after Ginsburg's death, Trump nominated Barrett, who had once signed a statement against "abortion on demand." Shortly after the burial, grieving staff members were instructed to empty Ginsburg's chambers. Barrett was confirmed Oct. 26, when early voting was already underway in the election that would end Trump's presidency.

Suddenly the Mississippi law had fresh prospects. But instead of discussing whether to take the case, the court rescheduled the matter again and again, for an unusual nine times, through the end of the year. For at least some of that period, Alito was doing the rescheduling, according to two people who observed the process. To some at the court, he appeared to be waiting for his new colleague to get settled. Alito did not respond to a request for an interview about his role in the case.

Alito, for his part, had long been open about two things: He wanted to be on the Supreme Court — he joked about it in his Princeton yearbook — and he believed Roe was wrong.

In 1985, as Reagan administration lawyer, he helped craft strategy to challenge state abortion laws. Later, he wrote that he had helped advance "legal positions in which I personally believe very strongly," one of which was that "the Constitution does not protect a right to an abortion."

After President George W. Bush nominated him to the court in 2005, his mother told reporters that he "still carries his Roman Catholic values" and "is against abortion."

At his confirmation hearings, Alito was questioned about his 1985 assertion that the Constitution did not protect abortion. He told senators that he would approach any questions about Roe no longer as a lawyer advocating an outcome but as an impartial judge.

A bold reversal

The process of deciding whether to hear a case is opaque, unfolding within the "conference"— the term for the justices' private meetings, as well as the whole group. That decision to grant review, or certiorari, requires at least four votes. Tallies are not public. Even some ground rules are secret, codified in a memo called "The Confidential Procedures of the Conference."

That January day, the justices talked against a strange, scary backdrop: A coronavirus surge was everywhere, and two days before, the court building was emptied after a mob of Trump supporters overtook the Capitol, just across the street.

Two decades after the Roe decision, the court in Planned Parenthood v. Casey had given states some leeway to restrict abortion. But it reaffirmed what it called Roe's core rule: States could not ban the procedure before the point of viability, or survival outside the uterus (currently about 23 weeks, near the end of the second trimester). Ever since, the court had refused to reconsider that line, making it "one of the most well-settled issues in the law," as Re, the law professor, put it.

Now Mississippi had a bold ask: to let states enact abortion limits before the viability line — starting with its 15-week ban.

But it stopped short of requesting the court to invalidate Roe. "To be clear," it said, "the questions presented in this petition do not require the court to overturn Roe or Casey."

Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, he made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring. That would push it to the next term, avoiding a rushed briefing and argument schedule, and allow them to watch other abortion cases winding through lower courts, according to two people aware of the discussion. His plan would also suggest the court was still debating whether to go forward, even though a vote had been taken — and create the appearance of distance from Ginsburg's death.

Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case that term. Some justices questioned whether Kavanaugh's proposal was appropriate: The case had been on the docket since September.

But Barrett, the newest member of the court, made a strong stand. She was the lone woman in the conservative bloc, with seven children and personal views on abortion that were no secret. Of the nine people in black robes, she was the sole mother.

This was not the time, she told Alito, according to two people aware of the comment. She had arrived not even three months before. If the others intended to hear the case that term, she said, she would change her vote to oppose taking it.

The chief also expressed concern, saying the court could look as if it had been waiting for a new justice to take on a challenge to Roe. Alito, seemingly worried that a delay could affect the outcome, asked Kavanaugh if his vote was solid, to which the younger man said yes.

In the conservative legal movement, which felt burned by defections by Republican appointees, Kavanaugh was seen as a flight risk. His jurisprudence on abortion law was marked by attempts to patch together compromises and push off difficult decisions. As his name had surfaced on a shortlist for the court, supporters of potential rivals attacked him in an anonymous memo claiming he showed a pattern of "abandoning conservative principles."

Still, the right closed ranks around him after his nomination, especially after he was accused of long-ago sexual misconduct, which he vehemently denied.

The court's delay tactic on Dobbs opened a door for possible persuasion. Roberts and Breyer, who were both drawn to consensus, were hoping to persuade their two newest colleagues to reconsider their support for hearing the case.

Breyer was sometimes dismissed by other liberals as an overly optimistic institutionalist who underestimated the ambitions of the conservative majority. But inside the building, he had formed strong ties with the justices on the right. (When Alito arrived, Breyer charmed him with a surprise visit from the Phillie Phanatic, mascot of his favorite baseball team.) "They like him," said one conservative who worked at the court then. "He's like your favorite law professor."

Arguments for abortion rights that were rooted in women's equality and autonomy appeared unlikely to win over the conservatives. But his argument about Dobbs and abortion had become broader, stressing a need to respect precedent and guard the court's legitimacy.

"What's the rush?" he would ask, according to several people at the court then. "Why would you do it first thing after you get on the court?"

His entreaties failed. On May 17, 2021, the court publicly said yes to hearing Mississippi's petition. With their waiting game, the justices had nearly broken a record: Dobbs was the second most re-listed case ever granted review.

But sometime before the announcement, Barrett had switched her vote. Just four members of the court, the bare minimum, chose to grant, with Kavanaugh taking the side of Alito, Gorsuch and Thomas. They overrode five colleagues — including all the female justices — who had an array of concerns. The men appeared to be betting that Barrett would ultimately side with them, pushing her into a case she had not wanted to take.

Her reasons for the reversal are unclear. But as a professor in 2013, she had written a law review article laying out the kind of quandary she faced in spring 2021. "If the court's opinions change with its membership, public confidence in the court as an institution might decline," she noted. "Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason."

That July, with its audience before the court secure, Mississippi made the case more monumental, abruptly changing its strategy. "Roe and Casey are egregiously wrong," the state's main brief declared on its first page. It urged the justices to be bold. "The question becomes whether this court should overrule those decisions. It should."

The author of the brief that transformed Dobbs into a full assault on Roe, Scott Stewart, the newly appointed solicitor general of Mississippi, was a former law clerk who, like many others, maintained close ties to the court.

The month it was filed, Thomas and his wife, Virginia, held a gathering for his former clerks and their families at a West Virginia resort. Stewart, who had worked for the justice from 2015-16, was among them. He had attended reunions in previous years, and now he was about to argue his first case — one of surpassing importance — before his former boss and the other justices.

Jeffrey Fisher, a Stanford law professor who helped represent the abortion clinic in the case, was struck when he read Mississippi's brief. "The state's going for the jugular," he remembers thinking. "This is it."

Countdown to midnight

But the fall of Roe began even sooner. In late summer 2021, with both sides in Dobbs preparing their arguments, a case from Texas raced ahead, causing a last-minute scramble inside the court.

"It is a jolt to the legal system when you overrule a precedent," he had said at his confirmation hearings. "Precedent plays an important role in promoting stability and evenhandedness."

He objected to claims that judges were partisans, and advocated steadiness. In 2012, he cast a vote to save Obama's Affordable Care Act, infuriating many conservatives.

Now, nearly a decade later, the Trump nominees had arrived, and Alito and Thomas were gaining the upper hand. The chief, who has limited authority over his fellow justices, was losing his ability to cultivate restraint and found himself in a lonely position: as a conservative ally to his three liberal colleagues in preserving at least some abortion rights. In the final days of August 2021, the justices considered a law designed to shatter those protections.

Abortion providers were asking the court to block a new Texas law that was intended to all but abolish the procedure in the state, banning it beyond about six weeks of pregnancy. The law had been contrived to evade federal review, including from the Supreme Court. In an end run, its authors assigned enforcement not to state officials but to private individuals, who could sue anyone who performed or helped with abortions, from doctors to Uber drivers.

To make matters more fraught, the challenge to the Texas law arrived in an emergency application, part of the "shadow docket" through which the justices made rapid calls with little public explanation. The new law was set to go into effect in less than two days, the moment the calendar turned to Sept. 1. Unless the justices acted, Roe would effectively be overturned in the second-largest state in the country.

But the chief put up a fight. "It is certainly arguable (and argued here) that the existence of the law itself operates to chill the exercise of a recognized constitutional right," he wrote, according to the notes, and it could have far-reaching implications. He wanted to pause the ban and figure out how to proceed. Breyer, Kagan and Sotomayor took his side, resulting in four votes to intervene.

With just a few hours until midnight, the court was split 4-4. One justice had not voted: Neil Gorsuch.

There would be no word from him that evening, Alito reported to his colleagues. Later, Gorsuch declined to comment to the Times.

Nothing that happened afterward affected the outcome. The next afternoon, Gorsuch voted against intervening. The chief justice made one last argument to block the law but failed, according to the notes. The court announced its decision; the litigation continued to play out for months, reaching the justices again for a fuller hearing, but the statute stayed intact.

That summer night in 2021, Roe was partially undone.

"What a pity that we cannot do the right thing," she wrote.

15 weeks

That fall, the lawyers in the Dobbs case were rehearsing for their appearance before the justices, each side doing an extraordinary eight rounds of moot court exercises. As Stewart, the Mississippi solicitor general, prepared for his turn at the lectern during oral arguments, he was urged by conservatives among the elite Supreme Court bar to mention a middle ground that might appeal to the chief justice and help ensure at least a partial victory.

The logic went like this: The state's 15-week limit on abortions could be upheld without overturning Roe. That cutoff, broadly consistent with U.S. public opinion and practices in many other democracies, would still allow the majority of abortions. The state's brief did devote a few pages to the possibility.

That December, in a sparsely filled courtroom under COVID-19 restrictions, Stewart brushed off the advice he had gotten and went big. The justices should "go all the way and overrule Roe and Casey," he said.

The clinic also took an all-or-nothing position. "States will rush to ban abortion at virtually any point in pregnancy," responded Julie Rikelman, a lawyer for the clinic.

The strategy was "to really put pressure on what this was going to mean, for the integrity of the court, to reverse such a long-standing, individual, personal liberty, and the chaos that it was going to create," said Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line, the clinic's lawyers felt, would only lead to the eventual undoing of Roe.

But defending Roe had particular challenges. Its reasoning, based on a right to privacy said to be implicit in the Constitution, had been widely criticized over the years, including by liberal scholars who supported abortion rights as a matter of policy.

"It is not constitutional law," wrote John Hart Ely, in the Yale Law Journal in 1973, "and gives almost no sense of an obligation to try to be."

Ginsburg, too, had qualms about the decision. In public appearances, she said that the Supreme Court had "moved too far, too fast," in the ruling, and that she wished it had been based on a gender-equality rationale.

When she said a 15-week limit would not give women enough time to decide the fate of their pregnancies, Alito cited a passage in her brief. "You say that 'there are no half-measures here,'" he said. "Is that a correct understanding of your brief?"

It was, Rikelman said.

Days later, the justices reassembled to take a preliminary vote. Five favored overturning Roe, meaning they seemed set to prevail. The chief would have allowed Mississippi's 15-week ban — technically putting him in the majority — but would go no further. The three liberals would have upheld the lower courts' invalidation of the law.

When the chief is on the prevailing side, he typically assigns opinions. But in this case, several people from the court said, the senior member of the majority — Thomas — assigned the opinion to Alito.

In his draft, Alito wrote that Roe and Casey were legally unsound, that abortion rights had only a limited history in the United States and that abortion destroyed what the Mississippi law called the life of an "unborn human being."

Alito had a special reason to fear defection. In 1992's Casey decision, many observers thought the court — with eight justices, including Thomas, appointed by Republican presidents — would overturn Roe. Five initially favored doing so, according to legal historians.

But Justices Sandra Day O'Connor and David Souter secretly persuaded Justice Anthony Kennedy to join a middle-of-the-road opinion. Those justices permitted more restrictions on abortion but saved the overall right, shifting it from its controversial privacy rationale to one focused on liberty.

Alito knew the story well, because he had heard Casey as an appeals court judge. Now, the loss of even one member of the Dobbs majority would mean defeat, for the case and the conservative legal movement.

"If the court fails to overrule Roe, the ruling will likely shatter the movement," J. Joel Alicea, a Catholic University law professor and former Alito clerk, wrote in an essay at the time.

In mid-March, the conservative majority learned something worrisome: Thomas was hospitalized for an unspecified infection that was not COVID. He would be released in a day or two, a court statement said. Instead he spent a week in the hospital. He recovered, but it was a reminder that no one knew how long the conservative supremacy might last.

The chief's middle position had potential power. Because the six-vote majority was splintered — he was willing to join the others in upholding the 15-week law but not in overturning Roe outright — the court's rules required that at least five justices had to agree on the position for it to hold. Otherwise, the rationale resting on the narrowest grounds would prevail. That meant the chief needed to peel only one vote away from the conservative side to transform his losing compromise into the winning opinion — and save the constitutional right to abortion. (The chief's efforts were reported earlier by CNN.)

Breyer sought out Kavanaugh, growing passionate in his arguments. If they could win him over, Breyer even contemplated joining him and the chief in a 15-week position, according to people familiar with his thinking. The move — restricting the right to abortion to help save it — might have outraged liberals. But for Breyer, who had just announced his retirement, it would have been a parting statement about how the justices can address contentious questions.

Meanwhile, even as the conservatives were seeking the chief's vote, he was laboring over a concurring opinion he hoped would be persuasive. It was difficult to tell how open Kavanaugh was to changing his position, according to several people aware of the discussions. But he was listening to his colleagues.

On April 27, after hearing the last argument of the term, Roberts paused for a moment of recognition. This would be Breyer's final appearance after 28 years on the court. As the chief saluted "the privilege of sharing this bench" with his friend, he choked up with emotion.

An end to compromise

In other relatively recent cases — the 2012 Obamacare case and a 2020 case about gay and transgender rights — similar warnings had appeared in conservative media outlets, apparently to try to prevent justices on the right from splitting off to join liberals. In the health care matter, some information appeared to have dribbled out of the court.

But the leak of the Alito draft turned into a violation of a different order. On April 29, the justices gathered for their Friday conference meeting. Traditionally, they ate lunch together afterward in their dining room, and this time they had planned a birthday toast for Kagan, who had turned 62 the day before.

Sometime during those hours, the chief justice informed his colleagues that the full draft had been shared with Politico, according to people at the court then. On the following Monday evening, May 2, the news site published its story.

Stewart, the Mississippi solicitor general, was walking his dog in Jackson when he found out his side seemed set to win the historic case. One of the lawyers for the clinic was parking her car in Brooklyn when she heard the news. The clinic's owner and director were changing planes in Atlanta when word flashed on television screens. Millions of other Americans were commuting home or eating dinner when they learned the Supreme Court appeared ready to rule against the constitutional right to abortion.

Along with jubilation from opponents of abortion, and anguish from supporters, came a shared question: Would this be the final decision? In a grim statement acknowledging the leak and announcing an investigation, the court said the draft "does not represent a decision by the court or the final position of any member on the issues in the case."

Behind the scenes, that did not turn out to be true. Whatever the intent, the breach became a strike on the chief, Breyer and their quest for compromise, said several people from the court. The chief worried whether he could even share his concurring opinion on an email list that had become a roster of suspects, waiting until new, paper-only protocols were in place.

The fact that the entire draft had been leaked, not just the outcome, raised the possibility that someone had tried to either expose the language or seal it. Pending votes were secret in part to allow justices to change their minds, and making the draft public had effectively cemented the votes.

The leak investigation that followed was inconclusive and drew complaints that it was unfair. The justices talked to the court's marshal but were not subjected to scrutiny as clerks and other employees were, the marshal later acknowledged.

Some conservative commentators theorized that a liberal had shared the draft to raise alarms. On the internet, accusers on the right attacked some of the clerks for liberal justices, posting speculative theories along with their names and photographs. (Later, investigators found "nothing to substantiate" the accusations.)

The marshal's office presented a form to the clerks, later obtained by the Times, that spurred panic. The young lawyers, dependent on court relationships for future jobs, were asked for access to their personal phones; location data going back nearly a year; and emails, texts, voice messages and photos.

Amid all the procedural questions surrounding Dobbs, "the leak is the biggest potential stain on the case, especially if it was intended to influence deliberations," said William Baude, a University of Chicago law professor and former clerk to Roberts. "But because the motive and culprit are unknown, it's been hard to evaluate."

Registering dissent

At 10:10 a.m. on June 24, 2022, near the end of the term, the court released its decision. Alito's leaked draft, with some slight changes, had become the final word.

"Roe was egregiously wrong from the start," he wrote, adding, "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives." The nation erupted in protest and celebration.

The dissent was unusual, written by the three liberal justices in unison. Overturning Roe and Casey "undermines the court's legitimacy," they wrote, a grave statement from Breyer, who had spent years defending the institution to critics.

Months later, reading dissents aloud would be challenged, according to a record of the discussion. As the pandemic abated and Justice Ketanji Brown Jackson settled into the court, Gorsuch pushed to maintain the COVID-era practice of dispensing only written decisions. He wanted to skip in-person decision announcements altogether, including oral dissents, which he argued were often misleading. The public would gain respect for the court by focusing on written opinions, he said. Alito, Barrett and Thomas responded that they agreed.

The outnumbered liberals, now all female, stood to lose the most. "I think this would be a particularly unfortunate time to eliminate the practice of reading dissents," Kagan wrote to her colleagues. Kavanaugh agreed with them, and after further discussion, the group decided that the tradition would survive.

But it did not apply to Dobbs. The chief had turned Breyer down. Decisions at that time were still being released online, not in person.

Within hours of the announcement, abortion clinics in some states had to close. But Mississippi had a 10-day interim period. As the clock counted down, a single doctor at the Jackson clinic tried to serve everyone. The medical team there had been unusually busy ever since abortion had been all but banned in Texas. Now, patients came from Alabama, too.

On July 6, the clinic performed its final abortion. The pink building was painted white and turned into a home décor store. But the phone lines stayed open. For months afterward, women who had not gotten the news about the justices' decision in Washington were still calling.