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In May 2022, as abortion-rights and anti-abortion activists digested and responded to a leaked majority Supreme Court opinion overturning Roe v. Wade, attention turned to what some presented as a callous and inhumane argument for the restriction or prohibition of abortion access in the United States. For example, on May 6, left-leaning commentator and self-described body language expert Jack Brown tweeted: In another widely shared tweet, @PaulCogan claimed that: And @tnicholsmd wrote: @Stonekettle similarly claimed that the conservative justices in the majority had cited the domestic supply of infants for adoption as justification for taking away your right to your own body, and @LadyJayPersists described the argument in the brief as forced pregnancy in order to add to a 'domestic supply of infants' for adoption. These tweets grossly misrepresented, or fundamentally misunderstood, the contents, context, and function of a footnote from the leaked draft opinion. None of the justices, including Samuel Alito and Amy Coney Barrett, made the argument that abortion should be banned or restricted for the purpose of creating, maintaining, or increasing a domestic supply of infants. Our rating is therefore False. The document whose leaking set off a firestorm in May 2022 was a draft majority opinion, written by Alito, in the case of Dobbs v. Jackson Women's Health Organization, which revolved around Mississippi's 15-week abortion ban. In it, the majority explicitly overruled Roe and Planned Parenthood v. Casey, a landmark 1992 case in which the court substantially reaffirmed the central hold in Roe, namely that the U.S. Constitution — in particular the Due Process Clause of the 14th Amendment — acknowledges and protects a fundamental (but not absolute) right to an abortion, as part of a broader fundamental right to privacy. Alito's draft opinion attacked that principle, which is essential to Roe, and stated: The draft opinion also recommended that the legal status of abortion should henceforth be left to lawmakers — federal and state — to decide (It is time to heed the Constitution and return the issue of abortion to the people's elected representatives), even though both opponents and supporters of abortion rights have made what the draft describes as important policy arguments: Here's how Alito's draft summarized the important policy arguments made by both sides. First, defenders of Roe and Casey: Meanwhile, Americans who believe that abortion should be restricted ... note that: Remember, those are not arguments or claims that Alito or anyone else on the majority is making. Those are arguments made by others, but listed in Alito's draft opinion as representative of the most up-to-date policy positions on either side of the great moral and legal debate over abortion. One can quite legitimately dispute the fairness and representativeness of Alito's lists of important policy arguments, but it cannot reasonably be asserted that these are arguments Alito himself is making. The argument about adoption is as follows: Historically, one reason why a woman who was not in a position to care for a child might have chosen to access an abortion, rather than choosing to give birth and place the baby for adoption, was that she was concerned the child would not be properly cared for in the adoption system. However, in recent years the number of would-be adoptive parents has far exceeded the number of infants placed for adoption, which increases the likelihood of a stable and loving family environment being found for any given baby, thus undermining the relevance of the adoption fear basis for abortion, as outline above. In order to explain this point, Alito's draft opinion included a footnote that cited an August 2008 report published by the federal U.S. Centers for Disease Control and Prevention (CDC), as well as some CDC statistics on adoption: The footnote also quoted from the 2008 CDC report, as follows: Some readers might quite reasonably find it jarring to see the language of supply and demand — more commonly seen in the context of markets — being used in a federal government report about adoption. However, this is not what several viral social media posts said in May 2022. They said, specifically, that Alito and other conservative justices had themselves argued for the prohibition of abortion access, in order to increase or protect the domestic supply of infants made available for adoption. That claim fails in the following ways:
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