Justice Samuel Alito twice quoted the late Ruth Bader Ginsburg, a fierce advocate of abortion rights, in his leaked draft opinion poised to overturn Roe v. Wade

• Justice Alito quoted the late Justice Ginsburg in his leaked draft opinion that would reverse Roe v. Wade.
• He quoted comments from Ginsburg where she critiqued the legal arguments used to pass Roe.

Associate Supreme Court Justice Samuel Alito cited the late Justice Ruth Bader Ginsburg in his leaked draft opinion that would reverse landmark abortion rights.

The unprecedented leak to Politico appears to show that the Supreme Court is set up to overturn Roe v. Wade, the landmark 1973 ruling that granted women the constitutional right to an abortion. In his 98-page initial draft majority opinion, which has been verified by Chief Justice John Roberts, Alito argued Roe was "egregiously wrong from the start."

He called for both Roe and Planned Parenthood of Southeastern v. Casey, which affirmed federal protections of abortion rights nationwide, to be overruled.

In the drafted opinion, Alito quoted the late Justice Ginsburg, who was a famously strong defender of women's rights during her 27-year tenure on the court before her death in 2020.

"Roe...halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue," Alito quoted Ginsburg on the third page of his 98-page opinion.

In a lecture published in the 1992 issue of the New York University Law Review, Ginsburg argued that in the 1970s, amid a wave of cases on gender issues, the Supreme Court "approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive."

"Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue," Ginsburg said. She added that the Roe decision "coupled with the rights of the pregnant woman the free exercise of her physician's medical judgment," instead of focusing on "the idea of the woman in control of her destiny and her place in society."

In the leaked opinion, Alito again cited Ginsburg (on page 64), where he argued that Roe "'inflamed' a national issue that has remained bitterly divisive for the past half-century... And for the past 30 years, Casey has done the same."

"Neither decision has ended debate of the issue of a constitutional right to obtain an abortion," the opinion reads. "Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives."

He added: "This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on."

Ginsburg openly held reservations about the legal basis on which Roe was passed, arguing that the sweeping ruling "stopped the momentum that was on the side of change" in favor of abortion rights. The landmark case started a state-by-state mission to restrict abortion access, she'd said.

Ginsburg argued that the Court should have stopped after striking down the Texas law challenged in Roe, which made abortion illegal in the state, except for in cases where a physician ruled the pregnancy threatened the mother's life.

"A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy," Ginsburg said in the NYU Law lecture.

She suggested it would have been better to take up a case that emphasized a woman's right to choose. As TIME reported, she eyed the case Struck v. Secretary of Defense, which involved a captain who sued the Air Force after she was told to abort her pregnancy to keep her job or leave if she insisted on continuing the pregnancy. Ginsburg believed this case, which did not end up being heard by the Supreme Court, would have focused the crux of abortion rights on the matter of equal protection under the law rather than the right to privacy.

"It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law," Ginsburg said in her confirmation hearing in 1993.

In a statement verifying the leaked draft opinion, the Court said it "does not represent a decision by the Court or the final position of any member on the issues in the case."