What to Know About Samuel Alito, Who Authored Draft Opinion Overturning Right to Abortion Access
Erin Schaff-Pool/Getty Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021
Justice Samuel Alito has become the central figure in the Supreme Court's still-pending decision on nationwide abortion access following the leak of a 98-page draft opinion he authored earlier this year calling for the overturning of two landmark cases.
On Monday night, Politico released the draft of a majority opinion Alito circulated in February — with four other Republican-appointed justices reportedly joining him in favor of striking down Roe v. Wade and Planned Parenthood v. Casey.
While a final decision isn't expected until this summer (and the justices' votes could still change), such a ruling would effectively end the constitutional right to an abortion and place the regulations up to individual states.
The release of the draft opinion is extraordinary for a number of reasons, including the leak itself, which Chief Justice John Roberts called "a singular and egregious breach" in a statement issued Tuesday — confirming the opinion was authentic but noting it was still only a draft.
But the brighter spotlight is on the text itself, which is labeled as a first draft and the "Opinion of the Court" and states, "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
In a statement on Tuesday, the Supreme Court said that the draft opinion "does not represent a decision by the Court or the final position of any member on the issues in the case."
If the majority does decide to strike down Roe and Casey, abortion would be on track to become illegal in roughly half of all U.S. states, experts say.
For now, the draft opinion is stirring intense debate — and drawing attention to the author himself.
All About Alito
Alito, 72, is among the court's six conservative-leaning justices — three of whom were added during Donald Trump's presidency. Alito was nominated by President George W. Bush in October 2005 and has many credentials familiar to the high court: He attended Princeton University and Yale Law School and served as a lawyer in the Reagan administration and a judge on the U.S. Court of Appeals for the Third Circuit.
Alito was confirmed somewhat narrowly by the Senate, 58-42, and has served since January 2006, where he is one of the most staunchly conservative voices on the court.
As an appellate judge, he dissented in Casey — the ruling he now appears likely to finally reverse — though the majority at that time had struck down a law forcing women to alert their husbands prior to getting an abortion.
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Past Rulings and Views
In 2014, Alito authored the majority decision in the Burwell v. Hobby Lobby case, when the court (in a five-to-four decision) determined that family-owned corporations could be exempt from laws requiring them to provide female employees access to contraception coverage at no cost.
Alito said that the requirement infringed upon the religious freedom of the owners of the company.
In 2020, he made headlines for comments made about the COVID-19 pandemic at an event sponsored by the conservative Federalist Society, when he said the country had "never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."
"The COVID crisis," he added, "has served as sort of a constitutional stress test."
Elsewhere in that same speech, Alito raised eyebrows when discussing gay marriage, arguing that it is "now it is considered bigotry [to] say that marriage is the union between one man and one woman."
Alito has also issued rulings in the past related to LGBTQ people, as when the court denied taking up a case of a nonprofit ministry organization that had blocked an applicant for an attorney position because he was in a same-sex relationship.
In that decision, Alito found that religious employers should be allowed to not hire those with different beliefs and that forcing them to do so would "undermine" their "autonomy" as an organization, Forbes reports.
What Has He Said About Abortion?
Alito's legal philosophy on the lack of constitutionality guaranteeing abortion access appears to be long-held.
In a 1985 application for a promotion at the Justice Department, according to The New York Times, Alito wrote that he was "proud" of contributing to cases that argued "the Constitution does not protect a right to an abortion."
During his 2005 confirmation hearings for the Supreme Court, Alito offered another window into his thoughts about Roe, saying then: "[It] is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions ... and the Supreme Court has reaffirmed the decision ... the more often a decision is reaffirmed, the more people tend to rely on it."
Asked by Sen. Chuck Schumer during that hearing if it was "very likely" that he would vote to overturn Roe v. Wade as a justice, Alito would only respond that, as an appellate judge, he had adhered to the precedent set by the decision: "My Third Circuit record, in looking at abortion cases, provides the best indication of my belief that it is my obligation to follow the law in this area and in all other areas."
What Does His Draft Opinion Say?
Alito wrote in February, according to the leaked document, that the right to have an abortion would remain up to each state, that Roe "was egregiously wrong from the start" and that it "must be overruled."
"We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey [a 1992 case in which the Supreme Court upheld the right to have an abortion]," Alito wrote. "And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."
His draft opinion continued: "We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives."
Roughly half of all U.S. states have already created laws that would ban abortion if Roe and Casey are overturned and the opinion comes at a time when abortion rights are under assault across the country (in 2021, a record 106 restrictions on abortions became law in the U.S.)
Abortion access is one of the most debated social issues, even as polling repeatedly shows a majority of Americans support it in most cases.
Some legal experts warn that Alito's language in his draft opinion on abortion signals a potential impact on other rights, too.
"The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions," Alito wrote, adding elsewhere in the document: "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."
That language raises questions about how Alito (and other conservative justices) might push to broadly reshape the cultural landscape or vote on cases concerning other rights "not deeply rooted" in American tradition or mentioned in the nearly 300-year-old Constitution — like interracial or gay marriage, for instance.
Speaking to reporters on Tuesday, President Joe Biden wondered aloud whether Alito's rationale for striking down Roe could impact the Griswold v. Connecticut ruling of 1965, which protects the privacy of married couples to buy and use contraceptives without government restriction.
"If the rationale of the decision as released were to be sustained, a whole range of rights are in question — a whole range of rights," Biden said. "And the idea we're letting the states make those decisions, localities make those decisions would be a fundamental shift in what we've done."
