The Leaked Dobbs Draft and the Last Weeks of Roe v. Wade

On the evening of May 2, 2022, Politico published a document that was not supposed to exist outside the Supreme Court building. It was a draft majority opinion in Dobbs v. Jackson Women's Health Organization, written by Justice Samuel Alito, marked as a first draft, and dated from that February. It said, in plain language, that Roe v. Wade was wrong from the start and must be overruled. By the next morning a crowd had gathered outside the Court, and Chief Justice John Roberts had issued a statement confirming the document was authentic while stressing that it did not represent the Court's final decision. For seven weeks, the country lived in an odd state of suspended knowledge: almost everyone assumed they knew how the case would end, and nobody could be sure.

In short: The leaked Dobbs draft in May 2022 was the first time in modern history that a full Supreme Court draft opinion became public before the ruling. The final decision on June 24, 2022, largely tracked the draft, overruling Roe and Casey and returning abortion regulation to the states, which set off a wave of state bans, ballot measures and lawsuits that continue in 2026.

The case that was built to reach this point

Dobbs began with a Mississippi law passed in 2018, the Gestational Age Act, which banned most abortions after fifteen weeks of pregnancy. That was well before the point of fetal viability, which under Roe and the 1992 decision in Planned Parenthood v. Casey was the line before which states could not ban abortion. The law was, in other words, unconstitutional under existing precedent, and the people who wrote it knew that. Its purpose was to give the Supreme Court a vehicle.

The challenger was Jackson Women's Health Organization, the only licensed abortion clinic left in Mississippi, a building in Jackson painted bright pink and known locally as the Pink House. The lower federal courts blocked the law, as precedent required. Mississippi appealed, and in May 2021 the Supreme Court agreed to hear the case.

Something changed in the state's argument along the way. When Mississippi first asked the Court to take the case, it framed the question narrowly, about whether all pre-viability bans were unconstitutional. After the Court agreed to hear it, the state's brief asked directly for Roe and Casey to be overruled. By then the Court's membership had shifted: Justice Amy Coney Barrett had replaced Justice Ruth Bader Ginsburg in October 2020, creating a six-justice conservative majority. At oral argument in December 2021, it was clear to most observers that at least five justices were ready to go further than upholding a fifteen-week line.

What the leak did and did not change

The leak was an extraordinary breach of the Court's internal confidentiality. Drafts circulate among the justices for months, votes sometimes shift, and opinions are rewritten in response to dissents. The Court treats that process as private so that justices can change their minds without public pressure. Roberts called the leak a betrayal and directed the Marshal of the Court to investigate. The Marshal's report, released in January 2023, said investigators could not identify the person responsible.

Some critics on the right argued the leak was meant to pressure a wavering justice into changing sides. Some on the left suspected it was meant to lock in the majority by making any retreat look like capitulation. Neither theory has been proved, and it is worth resisting the temptation to treat either one as fact. What can be said is that the final opinion, when it came, was substantially the same as the draft in its central holding and reasoning.

The leak did change the politics. It gave abortion rights supporters seven weeks to organize before the ruling, rather than having it arrive without warning. Democratic-led states moved to shore up their own protections. Republican-led states with so-called trigger laws, written to take effect if Roe fell, prepared to enforce them. And the Court itself became a security concern: a high fence went up around the building, and Congress passed a law extending police protection to justices' family members.

June 24, 2022: what the Court actually held

The final decision came on June 24, 2022. On the narrow question of whether Mississippi's fifteen-week ban could stand, the vote was six to three. On the larger question of overruling Roe and Casey, the vote was five to four.

The difference was Chief Justice Roberts. He agreed that Mississippi's law should be upheld but argued in a separate concurrence that the Court did not need to overrule Roe entirely to decide the case. He would have discarded the viability line while leaving some right to choose in place, saying the Court should decide no more than necessary. No other justice joined him. It is a revealing detail: the most institutionally cautious member of the Court could not find a single colleague for a middle path.

Alito's majority opinion held that the Constitution makes no reference to abortion and that no such right is implicitly protected by any constitutional provision. The test it applied asked whether a right is deeply rooted in the nation's history and tradition. The opinion concluded that abortion was not, pointing to the many state laws that criminalized it when the Fourteenth Amendment was adopted in 1868. The authority to regulate abortion, the opinion said, is returned to the people and their elected representatives.

The majority insisted that its reasoning applied to abortion alone, because abortion involves what it called potential life. Justice Clarence Thomas, in a concurrence, wrote that the Court should reconsider other precedents built on the same due process reasoning, naming the cases protecting contraception, same-sex intimacy and same-sex marriage. Justice Brett Kavanaugh, in his own concurrence, wrote that the decision did not threaten those precedents and that states could not bar residents from traveling to other states for an abortion.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote a joint dissent, an unusual format, arguing that the majority had stripped a constitutional right from half the population and that its history test, applied consistently, would endanger other rights the public takes for granted. They also argued that overruling a fifty-year-old precedent, which Casey had reaffirmed, damaged the Court's legitimacy and the principle of stare decisis.

The mechanism: from one rule to fifty

The practical effect of Dobbs was to replace a single national floor with a patchwork. Within days, bans took effect in several states with trigger laws. Others revived pre-Roe statutes that had never been repealed, some written in the nineteenth century. Courts in a number of states paused bans while lawsuits under state constitutions played out, and those state court fights became one of the most active areas of law in the country.

It is worth being precise about what "returned to the states" meant in practice. It did not mean a single vote in each state. It meant legislatures, governors, state supreme courts, attorneys general and voters through ballot measures all became central actors, often in conflict with each other. It meant that a person's legal situation could change with a drive across a state line. And it raised hard new questions that the ruling did not answer: how bans interact with federal law on emergency medical care, whether states can restrict medication abortion approved by the Food and Drug Administration, and whether states can reach across their borders to penalize help given elsewhere.

The strongest version of the other side's argument deserves a fair statement. Many people who supported Dobbs believe that a fetus is a human life deserving legal protection, and that Roe took one of the most morally contested questions in American life away from voters and gave it to nine judges, with reasoning that even some liberal legal scholars found thin. On that view, Dobbs restored democracy on the question.

The response is not to deny that democracy matters. It is to notice what democracy has done since. When voters have been asked directly, they have often chosen to protect abortion access, including in states that usually vote Republican.

The first test came in Kansas

The first vote after Dobbs came in Kansas on August 2, 2022, barely five weeks after the ruling. The legislature had placed a constitutional amendment on the primary ballot that would have declared the state constitution contained no right to abortion, opening the door to a ban. Supporters expected low primary turnout to help them.

Instead turnout was unusually high for a primary, and voters rejected the amendment decisively, by a margin of roughly eighteen points. Similar results followed in other states, including Michigan in November 2022 and Ohio in November 2023, where voters added protections to their state constitutions. In 2024, measures appeared on ballots in about ten states, and most passed, though some fell short of thresholds or failed outright.

What this shows is that the abortion question, once returned to the states, did not resolve itself along partisan lines. Voters who supported Republican candidates sometimes voted to protect abortion rights on the same ballot. That is both an opportunity and a caution for progressives. It means the issue can build coalitions beyond the usual base. It also means that framing abortion purely as a partisan loyalty test misses how many people hold more complicated views.

What Dobbs means for the courts going forward

The reasoning in Dobbs did not stay confined to abortion. Its history-and-tradition test now appears in arguments about other unenumerated rights, and Thomas's concurrence ensured that same-sex marriage advocates would take the threat seriously, which helped produce the Respect for Marriage Act later in 2022.

There is also an institutional lesson. Public approval of the Supreme Court fell sharply in several major polls after the leak and the decision, and it has not fully recovered. A Court that depends on public acceptance of its rulings, with no army or budget of its own, cannot ignore that for long. Supporters of the ruling argue that the Court should never decide cases based on popularity, and they are right as a matter of principle. The deeper concern is not popularity but trust: whether people believe the justices are applying law rather than outcomes.

Here is the argument: Dobbs reflected an organized, decades-long effort to change the Court's membership and then present it with the right case. That effort worked. Progressives who want to protect rights through the courts need an equally patient, long-term strategy covering judicial nominations, state supreme court elections and state constitutional law, while recognizing that ballot measures and legislation now carry much of the weight.

The questions the ruling left for later

Dobbs said that states could regulate abortion. It did not settle how state bans would interact with federal law, and the Court's next encounters with the subject showed how unsettled things remained.

The first concerned medication abortion, which by the time of Dobbs accounted for a majority of abortions in the United States. The pill mifepristone was approved by the Food and Drug Administration in 2000, and the agency had since eased some of the rules on how it could be prescribed, including allowing it to be sent by mail. A group of doctors and medical organizations opposed to abortion sued to roll those changes back. In June 2024, in FDA v. Alliance for Hippocratic Medicine, the Supreme Court unanimously ruled that the challengers lacked standing to sue, because they had not shown that they themselves were harmed. The ruling preserved access for the moment without deciding whether the FDA's actions were lawful, which left the door open to new challenges by other plaintiffs.

The second concerned emergency care. A federal law from 1986, the Emergency Medical Treatment and Labor Act, requires hospitals that take Medicare funds to provide stabilizing treatment to patients in an emergency. The federal government argued that this sometimes requires an abortion, even in a state with a ban. Idaho disagreed. The Supreme Court heard the case, Moyle v. United States, and then in June 2024 dismissed it without deciding the main question, sending it back to the lower courts.

A third set of questions involves state borders. Several states with protective laws have passed so-called shield laws designed to protect doctors and other providers within their borders from legal action by states with bans, including when prescriptions are sent across state lines. States with bans have pushed back. These conflicts between states have no clear precedent, and they are likely to reach the federal courts.

What you can do

Abortion law in 2026 is made in many places at once. Here is where an individual can help.

1. Find out what your state allows. Laws differ sharply from state to state, and some are being challenged in court. The reproductive rights topic page collects current reporting by state. This is general information, not legal or medical advice; for your own situation, check your state health department or a qualified professional.
2. Watch the Supreme Court's docket. The court watch page lists this term's opinions and the emergency docket, including cases on medication abortion and emergency care that affect every state.
3. Contact your lawmakers. Use the representatives lookup to find your state legislators and members of Congress, their phone numbers and their latest votes. State legislators decide most abortion law now.
4. Make sure you can vote. Ballot measures and state supreme court elections have decided abortion law in several states. The voting page has registration deadlines, ID rules and early voting for every state.
5. Support providers and funds. The organizations directory lists health and legal aid nonprofits in every state, including groups that help people travel for care.

The draft that leaked in May 2022 told the country what was coming. What happens next was never written in it.