How Supreme Court went from Roe v. Wade to drafting opinion to

Federal protections for abortion rights have withstood legal challenges for nearly half a century. But a Supreme Court draft opinion, revealed this week in an extraordinary leak, shows the high court poised to strike down that longstanding precedent.

The draft marks a stunning shift from a court that grew far more conservative during the Trump administration, even as Americans have broadly grown more liberal in the years since the pivotal abortion rulings in 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey.

Chief Justice John Roberts noted that the first draft, penned by conservative Justice Samuel Alito and reportedly circulated in February, does not represent a final decision in the case. But the early leak of an opinion that would upend nearly 50 years of precedent nevertheless represents the culmination of decades-long efforts by activists and lawmakers to challenge abortion at all levels, from the individual to the constitutional.

Here’s a look at what led to this moment:

In his 98-page draft opinion, Alito looked to the history of abortion policies in the U.S. to bolster his conclusion that Roe and Casey “must be overruled.”

Abortion is not a constitutionally protected right, Alito wrote, pointing out that the Constitution itself makes no reference to abortion. While he acknowledged that the court has interpreted the 14th Amendment to guarantee some rights that are not explicitly spelled out, Alito cited precedent stating that those rights must be deeply rooted in U.S. traditions and “implicit in the concept of ordered liberty.”

“The right to abortion does not fall within this category,” Alito’s draft said. “Up until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

The justice wrote that abortion was outlawed in three-fourths of the states at the time the 14th Amendment was adopted in the 1860s, and that 30 states had banned the procedure at all stages of pregnancy at the time Roe was argued before the court.

But the American Historical Association, which boasts of being the world’s largest organization of its kind, argued in a 2021 court brief that “American history and tradition under the common law undergirds Roe v. Wade’s holding that women have a constitutional right” to choose to have an abortion.

The group said that early Americans followed English common law, which did not regulate abortion prior to the detection of fetal movement — known at the time as “quickening.” That was the point at which the fetus was legally acknowledged to exist separately from a pregnant woman, the group said, adding that that common-law reasoning on abortion persisted in…