All-In PodcastE79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
At a glance
WHAT IT’S REALLY ABOUT
Supreme Court Leak on Roe Spurs Fears for Rights and Legitimacy
- Legal experts Amy Howe and Tom Goldstein explain the history of Roe v. Wade and Planned Parenthood v. Casey, and analyze Justice Alito’s leaked draft opinion that would overturn Roe and return abortion regulation to legislatures.
- They unpack originalism versus living constitutionalism, stare decisis, and why conservatives have spent 50 years methodically building a Court majority to reverse Roe.
- The conversation explores downstream risks to other privacy-based rights like contraception and same-sex marriage, as well as how Congress and state legislatures could respond if Roe falls.
- The hosts and guests also examine the impact of the leak on the Court’s legitimacy, potential internal dynamics among the justices, and structural reform ideas such as term limits.
IDEAS WORTH REMEMBERING
5 ideasOverturning Roe shifts abortion from a constitutional right to a policy choice.
If the Alito draft stands, abortion would no longer be protected as a federal constitutional right; instead, state and possibly federal legislatures would decide whether and how it is legal, leading to sharply divergent laws across the country.
The draft uses history and originalism to deny abortion as a fundamental right.
Alito argues abortion is not “deeply rooted” in American history and tradition, highlighting past criminalization and rejecting the privacy-based reasoning that underpinned Roe and Casey.
Stare decisis is weakened when the Court interprets the Constitution, not statutes.
The draft emphasizes that precedent is at its “weakest” in constitutional cases because only the Court can correct its own constitutional errors, making it easier to overturn even long‑standing rulings like Roe and Casey.
Other privacy-based rights are doctrinally exposed, even if politically safer—for now.
The same substantive due process framework used for contraception and same-sex marriage is rejected in the Dobbs draft; although Alito says those rulings are different, the reasoning could later be applied to challenge them, especially if the Court shifts further right.
The leak likely came from someone trying to lock in or derail votes.
Goldstein suggests the Wall Street Journal leak may have aimed to keep Kavanaugh and Barrett from moderating, while the Politico leak appears designed to alert and mobilize the public and progressive groups that Roe is genuinely at risk.
WORDS WORTH SAVING
5 quotesThe reasoning for overruling Roe is, by and large, the same reason that you would overrule Obergefell.
— Tom Goldstein
They have marched forward from that position where they were losing seven to two in the Supreme Court till June of this year, where they will likely win five to four.
— Tom Goldstein
Roe halted a political process that was moving in a reform direction, and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.
— David Sacks (quoting Ruth Bader Ginsburg’s 1992 article)
It’s going to be a scary quarter century.
— Tom Goldstein
Are we not just taking a big step back in society and saying, ‘You know, we’re going to throw out compassion in favor of original textualism’?
— Chamath Palihapitiya
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