A leaked copy of a draft opinion indicates that the Supreme Court will overturn Roe v. Wade, the case that legalized abortion throughout the nation.
It is just a draft, dated February 10, but it has the approval of five justices (the author Alito, Thomas, Gorsuch, Kavanaugh, and Coney-Barrett), which would constitute a majority decision). Three justices are dissenting (Breyer, Sotomayor and Kagan). Chief Justice Roberts has evidently not made up his mind.
Many observers thought the justices, in considering Mississippi’s case to restrict abortion (Dobbs v. Jackson Women’s Health Organization), would define the abilities of states to regulate abortion, while stopping short of overturning Roe v. Wade completely. But this decision throws out the precedent root and branch.
Justice Alito writes that “Roe was egregiously wrong from the start.” In the 67-page decision (98 with appendices), he eviscerates the earlier ruling. (You can read the entire ruling here, or go here for pertinent extracts.) “We hold that Roe and Casey must be overruled,” he concludes. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This is just an early draft, and such rulings are often revised, or even reversed. No ruling goes into effect until it is published, which was not expected in this case until July.
That this document was leaked, though, was virtually unprecedented. (Ironically, the outcome of Roe v. Wade–though not the actual opinion–had been leaked to Time Magazine.) With very few individuals having access to this kind of material–just the justices and a few of their clerks–the Supreme Court has been considered all but leak-proof. Now, as the Supreme Court news site SCOTUSblog tweeted, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Whoever leaked it must have wanted to influence the outcome. He or she must have hoped that the draft would create a tidal wave of outrage that would pressure the justices to change their intended ruling. Maybe it would persuade the undecided Justice Roberts, the conservative who does not like to rock the boat, to vote against it. And if only one of the concurring justices could be intimidated enough to change his or her mind, Roe v. Wade would be saved.
Bringing to bear such pressure would undermine the court’s obligation to rule according to the law. The outrage from the Left is focused on the end result, with no attention to the legal reasoning and constitutional arguments articulated in the document. Progressives are calling once again for packing the court, and protesters both outside the Supreme Court building and online are threatening violence (“let’s burn this place down!”).
Mollie Hemingway says that the Left is engaged in an “insurrection,” with the only difference with the alleged insurrection of January 6 being the branch of government being targeted.
Another likely reason for the leak is the hope that it will boost Democrats’ chances in the upcoming midterm election. The prospect for Democrats has been dismal, what with inflation, crime, President Biden’s unpopularity, etc., etc. The day before the document was leaked to Politico, the New York Times published a story on how Democrats are desperate to find a way to change the national mood against them.
The hope is probably that a tidal wave of outrage will divert the attention of the country away from inflation and the threat of nuclear war, changing the focus to the way Republicans are taking away the rights of women.
In fact, in a formal statement on the matter, President Biden has already spun the story in that direction. After condemning the draft ruling and saying that abortion is a “fundamental” right, he concluded,
If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.
What Democrats want to do now is to pass a federal law legalizing abortion nationwide by statute. Getting that through before the midterm elections will require eliminating the filibuster rule in the Senate, an effort that failed earlier, but is being revived by Democrats newly-energized over this issue.
The draft ruling overturning Roe v. Wade would return the issue to the states. That would mean a rebirth of federalism, as half of the states (an estimated 25) would be likely to impose strict limitations on abortion or ban it altogether. The other half would legalize abortion on demand.
As a result, we would probably see the rise of abortion tourism, as women in pro-life states would travel to pro-abortion states to abort their children. Also, woke corporations would make sure their operations are in pro-abortion states, and even corporations that are not particularly woke will claim that they cannot recruit the workers they need unless they move out of pro-life states. This will test the resolve of those states, and some of them may back away from the cause for economic reasons.
Though the pro-life battles will continue and probably even intensify, overturning Roe v. Wade will surely cut down the total number of abortions. So we should hope that the leaked ruling holds.
Do you think that the leak will have the effect the leaker apparently hopes for? Will it turn around the midterm elections in the Democrats’ favor?
Photo: Supreme Court Justices (2021) by Fred Schilling, Collection of the Supreme Court of the United States. Public Domain.
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