Behind the Scenes at the Dismantling of Roe v. Wade

The strategy was “to really put pressure on what this was going to mean, for the integrity of the court, to reverse such a longstanding, individual, personal liberty, and the chaos that it was going to create,” said Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line, the clinic’s lawyers felt, would only lead to the eventual undoing of Roe.

But defending Roe had particular challenges. Its reasoning, based on a right to privacy said to be implicit in the Constitution, had been widely criticized over the years, including by liberal scholars who supported abortion rights as a matter of policy.

“It is not constitutional law,” wrote John Hart Ely, in The Yale Law Journal in 1973, “and gives almost no sense of an obligation to try to be.”

Justice Ginsburg, too, had qualms about the decision. In public appearances, she said that the Supreme Court had “moved too far, too fast,” in the ruling, and that she wished it had been based on a gender-equality rationale.

During oral arguments, some of the conservative justices showed little interest in the chief’s course. Justice Barrett, who has two children from Haiti, asked about adoption as an alternative to abortion. Justice Alito pressed Ms. Rikelman with skeptical queries about the viability standard and the history of abortion rights.

When she said a 15-week limit would not give women enough time to decide the fate of their pregnancies, Justice Alito cited a passage in her brief. “You say that ‘there are no half-measures here,’” he said. “Is that a correct understanding of your brief?”

It was, Ms. Rikelman said.

Days later, the justices reassembled to take a preliminary vote. Five favored overturning Roe, meaning they seemed set to prevail. The chief would have allowed Mississippi’s 15-week ban — technically putting him in the majority — but would go no further. The three liberals would have upheld the lower courts’ invalidation of the law.

When the chief is on the prevailing side, he typically assigns opinions. But in this case, several people from the court said, the senior member of the majority — Justice Thomas — assigned the opinion to Justice Alito.

In his draft, Justice Alito wrote that Roe and Casey were legally unsound, that abortion rights had only a limited history in the United States and that abortion destroyed what the Mississippi law called the life of an “unborn human being.”

Now his mission was to keep his five votes together. Members of the court sometimes change their votes, which are not final until a decision is announced. When the speedy replies arrived in February, others at the court concluded that he had precirculated the draft opinion among his four allies, getting buy-in before sharing it with the full group of justices.