THENEWYORKER,M AY16, 2022 17
are, it seems, Justices Clarence Thomas,
Neil Gorsuch, Brett Kavanaugh, and
Amy Coney Barrett, the last three of
whom were nominated by Donald
Trump. Chief Justice John Roberts had
reportedly hoped that a majority could
be found to uphold the Mississippi law
while leaving Roe, in some form, in
place. But his vote hardly matters. The
ambitions of the Court’s five most con-
servative members seem unrestrained.
The most immediate effect of
Dobbs, if the draft opinion holds, will
be that tens of millions of women will
abruptly lose access to abortion. The
ruling itself would not institute a ban,
but it would give states almost bound-
less power to do so. More than twenty
states already have measures in place
that would severely curtail access: “trig-
ger laws,” designed to go into effect
once Roe is overturned; restrictions in
state constitutions; or laws that pre-
date Roe but were left on the books.COMMENT
AFTERTHELEAK
T
hose who have watched Samuel
Alito during his sixteen years as a
Supreme Court Justice will not have
been surprised to learn that his draft
opinion in the case of Dobbs v. Jackson
Women’s Health Organization, a chal-
lenge to a restrictive Mississippi abor-
tion law, is written in a register of scorn.
Alito’s 2015 dissent in Obergefell v.
Hodges, the case that recognized the
right of same-sex couples to marry, com-
plains that “those who cling to old be-
liefs” will be forced to “whisper their
thoughts in the recesses of their homes,”
lest they be subject to “turn-about” per-
secution by gays and lesbians and their
sympathizers. What’s different about his
Dobbs opinion, which was leaked to Po-
litico last week, though, is that it’s not a
dissent. It was, apparently, circulated in
February as the draft “opinion of the
court,” with four other Justices joining
Alito to overturn Roe v. Wade (decided
in 1973) and its successor, Planned Par-
enthood v. Casey (1992). Alito calls Roe
“egregiously wrong” and writes that there
is no constitutional right to seek an abor-
tion—not at any stage, in any pregnancy,
or for any reason he acknowledges. His
signature note of grievance may still be
present, but it is accompanied by a blast
of triumphalism.
Assuming that Alito’s majority stays
intact—and that the final opinion re-
sembles the draft—Dobbs will mark a
shift in the country that goes beyond
access to abortion. (The decision had
been expected in late June.) Alito’s com-
ILLUSTRATIONS BY JOÃO FAZENDApanions in aiming to throw out Roe
THE TALK OF THE TOWN
After the draft was leaked, Louisiana
legislators moved forward with a bill
that would not only ban almost all abor-
tions but would define them as homi-
cides. Sixteen states, meanwhile, have
laws protecting abortion rights. This
should be cold comfort to people who
live in those jurisdictions or who have
the financial means to travel. Their own
rights will be conditional; they may
feel that their choice of where to live
is constrained; their country will be
more divided and unequal than it is
now. But the burden will fall most heav-
ily on Americans with less money.
One way to illustrate the reach of
Alito’s draft is to look at what the op-
tions for defending reproductive rights
would be in its wake. Congress could,
in theory, enact protections, although
the filibuster is a barrier. But a Repub-
lican-controlled Congress could also,
with the help of a Republican President,
introduce a nationwide ban. Following
the leak, people around the country do-
nated to funds that, for example, would
help someone of limited means in Mis-
souri, which has an onerous trigger law,
pay for a plane ticket to obtain an abor-
tion in Massachusetts. These efforts
echo the work of groups such as the
Jane Collective, which helped women
find reputable abortion providers during
the pre-Roe era. They are a positive
means of providing mutual support—
for now. Some Missouri legislators, how-
ever, have pushed for a measure that
would allow anyone who helps some-
one obtain an out-of-state abortion to
be sued. A follow-up case to Dobbs
could easily involve a pregnant person’s
unrestricted right to travel to get care