Leaked draft opinion suggesting the Supreme Court is about to overturn Roe v. Wade cited claims frequently made by opponents of abortion. The opinion, written by Judge Samuel A. Alito Jr., sometimes presents those claims as indisputable fact while omitting context and counterarguments.
The Supreme Court confirmed last week that the draft was authentic, but warned that it was not final. According to Politico, which first published the draft, no other version has been circulated inside the court.
In the nearly 100-page decision, Judge Alito made or cited assertions about fetal development, abortion procedures, and international law that have been disputed or open to interpretation.
Here’s a fact check.
What Judge Alito wrote
“In support of this law, the legislature made a number of factual findings. He began by noting that, at the time of enactment, only six countries other than the United States ‘allow[ted] non-therapeutic or elective abortion on request after the 20th week of gestation’”.
Judge Alito referred to what he called the “factual findings” by the Mississippi Legislature that passed the 2018 law challenging Roe. The law makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe.
Those six countries, Justice Alito wrote, were Canada, China, the Netherlands, North Korea, Singapore and Vietnam. He added that Iceland and Guinea-Bissau were equally permissive.
This is accurate, based on the letter of international law. But comparing gestational limits alone does not present a complete picture of abortion access in different countries. As The Upshot reported, several countries that specify gestational limits also provide broad exceptions. In Britain, for example, an abortion must be approved by two doctors, but those requests are usually granted. In Denmark and Germany, exceptions to a 12-week gestation limit are made for mental and physical health, as well as life circumstances.
Opinion: A challenge to Roe v. Wade
Commentary from Times Opinion writers and columnists on the upcoming Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.
- Maureen Dowd: Samuel Alito’s draft opinion, calling for overturning Roe v. Wade, is the culmination of the last 40 years of conservative thinking, showing that the Puritans are winning.
- Tish Harrison Warren: For many pro-life and all-life leaders, a Supreme Court decision overturning Roe would represent a starting point, not a goal.
- Matthew Walther, E.editor of a catholic literary magazine: Those who oppose abortion should not rule out the possibility that its ban will have some unfortunate consequences. Still, it will be worth it.
- Gretchen Whitmer, Governor of Michigan: If Roe falls, abortion will become a felony in Michigan. I have a moral obligation to defend the rights of women in the state I represent.
Similarly, in New Zealand, a 2020 law allowed abortion up to 20 weeks and beyond if a doctor deemed it appropriate and considered the woman’s physical and mental health. Opponents of abortion rights have criticized the law as too permissive and vague.
A couple of amici briefs illustrate how abortion laws can be shaped to make different comparisons.
In a brief filed on behalf of Mississippi, a European Christian group asserted that most European countries allow post-gestational abortion “only in exceptional circumstances” such as rape or incest, fetal abnormalities or danger to the mother. (Mississippi law does not include exceptions for rape or incest.)
Instead, European legal scholars filed another brief on behalf of the Jackson Women’s Health Organization, which, as the only abortion clinic in Mississippi, is at the center of the case. He stated that 37 European countries allow abortion up to at least 22 weeks, either upon request, for broad socioeconomic reasons or based on the mother’s health that does not involve a risk to her life.
What Judge Alito wrote
“The legislature then found that at five or six weeks of gestational age the ‘heart of an unborn human being begins to beat.'”
Whether the sound described is a “heartbeat” is a matter of controversy, as The New York Times previously reported. At six weeks, the embryo’s cells begin to form a hollow tube that will become a heart, emitting electrical pulses that a machine translates into sound.
To many medical experts, this is not the same as a beating heart, defined as when the heart’s valves open and close to pump blood, because the tube in a six-week-old embryo does not yet have valves. Opponents of abortion maintain that a heart tube is still a heart, and many doctors and medical practitioners use the word “heartbeat” to describe the sound.
What Judge Alito wrote
“It found that the majority of abortions after 15 weeks employ ‘dilation and evacuation procedures, which involve the use of surgical instruments to crush and tear the fetus,’ and concluded that the ‘intentional engagement of such acts for non-therapeutic reasons or elective is a barbaric practice, dangerous for the maternal patient and degrading for the medical profession’”.
The state of Roe v. Wade
What is Roe vs. Wade? Roe v. Wade is a landmark Supreme Court decision that legalized abortion in the United States. The 7-2 ruling was announced on January 22, 1973. Justice Harry A. Blackmun, a modest Midwestern Republican and abortion rights advocate, wrote the majority opinion.
Dilation and evacuation is the most common procedure used in second-trimester abortions, as Justice Alito and the Mississippi legislature rightly point out. But contrary to its warnings about its danger to maternal health, the procedure is generally considered the safest for most women at that stage of pregnancy.
The procedure involves dilating the cervix and then removing the fetus in parts. Abortion opponents and several Republican states that have passed laws banning the practice have called it “dismemberment abortion.” Abortion rights supporters say such language is inflammatory and medically inaccurate.
According to a 2018 report from the National Academies of Sciences, Engineering, and Medicine, dilation and extraction are “effective with minimal complication rates, ranging from 0.05 percent to 4 percent.” The American College of Obstetricians and Gynecologists has said that the procedure “results in fewer medical complications than other abortion procedures and is often necessary to preserve a woman’s health or future fertility.”
What Judge Alito wrote
“They warn that attitudes about single women’s pregnancy have changed dramatically; that federal and state laws prohibit discrimination on the basis of pregnancy; that pregnancy and childbirth leave is now guaranteed by law in many cases; that health care costs associated with pregnancy are covered by insurance or government assistance.”
Judge Alito summarized and provided citations for various statements that he characterized as policy arguments made by opponents of abortion.
For the guaranteed leave claim, he pointed to a federal law that requires businesses with 50 or more employees to provide up to 12 weeks of unpaid family and medical leave, as well as data from the Bureau of Labor Statistics showing that nearly 90 percent percent of workers had access to vacations without pay. However, the same data shows that less than a quarter of workers had access to paid family leave in 2021.
Judge Alito also cited provisions of the Affordable Care Act that require insurers to cover maternity and newborn care as an essential health benefit. But recent studies have found that out-of-pocket costs for maternity care still average more than $3,000 for women with employer-sponsored insurance, and 95 percent of births covered by insurance require some out-of-pocket costs. There is no cost sharing for pregnancy-related care for Medicaid recipients. But Mississippi is one of 12 states that have yet to expand Medicaid eligibility, leaving tens of thousands of women without the coverage she detailed.
International comparisons, such as those made by Judge Alito on gestational limits for abortion, were also omitted from this discussion of protections and benefits for pregnant women. The United States is the only country without a paid family leave program among the 38 members of the Organization for Economic Co-operation and Development, which provided an average of 50 weeks of paid leave in 2020.