The United States is poised to enter a brave new world after a first in history leak of a potential ruling that would overturn Roe v. Wade and return the question of abortion to the states. We’ve never experienced anything like it, and despite the punditry, no one really knows where we go from here.
On Monday evening, the political and legal worlds were rocked by the unprecedented leak of an unofficial Supreme Court decision that would overturn Roe v. Wade. The draft decision was obtained by Politico from an unknown source who claimed that the five most conservative justices, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett, have indicated they would serve as a slim majority in a 5-4 decision to completely upend almost five decades of abortion jurisprudence, meaning abortion would be a Constitutionally protected right no more. The leaked document was drafted by Justice Alito, who concluded that Roe v. Wade was decided in error, and the legality of abortion must be returned to the states, where each state can craft its own position on the issue through their elected representatives. As he wrote, the original decision was “egregiously wrong from the start,” relying on reasoning that was “exceptionally weak” and “has had damaging consequences.” “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision,” Justice Alito claimed, adding “It is time to heed the Constitution and return the issue of abortion to the people’s representatives. That is what the Constitution and the rule of law demand.”
Needless to say, this is a bombshell unlike anything we have seen in the modern era, if ever: Never before has what was considered a fundamental right for three generations been overturned, much less leaked to the press before it was official. The reaction from both sides was swift as protestors gathered outside the court almost immediately after, chanting “Hey, hey, ho, ho, Samuel Alito’s gotta go,” “We will not go back,” “Abortion rights are under attack, what do we do, stand up fight back,” and “Pack the courts.” CNN’s Supreme Court analyst and professor at the University of Texas School of Law, Steve Vladeck, told the network, “This news is simply stunning for the Supreme Court as an institution. Not only is the result it portends — the overruling of Roe and Casey — a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we’re not just hearing what the result is going to be, but we’re seeing the draft majority opinion in advance. It’s hard to believe that the former doesn’t help to explain the latter, but it’s an earthquake in both respects.”
Constitutional scholar Jonathan Turley agrees that the leak is unprecedented and damaging to the credibility of the court. He took to Twitter to voice his concerns, writing, “The alleged leak of the opinion in Dobbs v. Jackson Women’s Health Organization is nothing short of breathtaking. It would constitute one of the greatest breaches of security in the history of the Court. The article represents the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court. It is a breach of the most fundamental obligations and traditions of the Court. If this is a true copy of the draft opinion it is hard not to view this as a malicious act. What is the motivation of releasing such a decision? The only intent of such a leak is to trigger a response from outside of the Court.” On Tuesday, Chief Justice John Roberts ordered an investigation into the leak, spearheaded by the marshal of the Supreme Court. Chief Justice Roberts also issued a statement, describing the leaked document as “authentic,” but noting that “it does not represent a decision by the Court or the final position of any member on the issues of the case.” The Chief Justice continued, “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.” He took a moment to praise the integrity of the staff and clerks who have earned the Justice’s trust, then added “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
Much of the criticism of the decision is based on the principle of judicial precedent, stare decisis, which biases judges and even Supreme Court Justices against turning over previous decisions, especially long standings ones that are rooted in fundamental rights and principles like Roe v. Wade. Justice Alito himself was keenly aware of this, going to great lengths to address why he felt stare decisis shouldn’t apply in this matter. In his mind, precedent shouldn’t “compel unending adherence to Roe’s abuse of judicial authority,” especially when the “inescapable conclusion is that a right to an abortion is not deeply rooted in the Nation’s history and traditions.” He believes the original decision has failed to bring “about a national settlement of the abortion issue” and instead has “enflamed debate and deepened division,” putting it on a “collision course” with the Constitution “from the day it was decided.” In addition, Justice Alito highlights a full half page of other precedents that were wrongly decided to the country’s detriment and ultimately overturned, such as the infamous Plessy v. Ferguson which instituted segregation in America under the insane “separate but equal standard.” He also noted the overturning of Roe v. Wade and its successor Obergefell v. Hodges need not have an affect on the other landmark decision rooted in those cases, the right to gay marriage. In his view, the gay marriage decision is “sharply” distinguished from Roe v. Wade because abortion is alone in destroying potential life. As he put it, “None of the other decisions cited by Roe and Casey, involved the critical moral question posed by abortion. They do not support the right to an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
Others, of course, take issue with this interpretation, believing that everything from gay marriage rights to same sex marriages to contraception are at risk. Justice Sonia Sotomayor alluded to this during the hearings on the case last December, believing that Roe and Casey are based on the notion that there are “personal decisions that belong to individuals and the states can’t intrude on them” and that “none of those things are written in the Constitution.” “They have all,” the Justice said, “been discerned from the structure of the Constitution.” Mr. Vladeck agrees, saying “Roe wasn’t decided in a vacuum; it’s part of a larger understanding of the Constitution that recognizes a right to privacy in text that doesn’t expressly identify it. If there’s a majority of justices no longer willing to recognize such a right in the context of abortion — indeed, who believe the court should never have recognized it — then that calls into question those other rights, as well.” This, however, might be a stretch: The same sex and contraception cases all pre-date Roe v Wade and are based on prior decisions that are not affected by any potential ruling here. Anything is possible, but the underlying cases remain untouched despite the bold claims. It’s also worth noting that there remains a clear difference that shouldn’t simply be glossed over. Same-sex marriage, mixed-race marriage, and contraception all occur between consenting adults and do not involve the potential life of an unborn child which all 50 states have chosen to protect with other laws.
Otherwise, the merits of his opinion you can make of what you will; minds certainly aren’t likely to be changed on such hardened positions. In my mind, Justice Alito certainly encapsulates the Republican argument that Roe v. Wade was not good case law by any means, and the result was the courts being responsible for playing the role of Solomon and continually cutting the literal and figurative baby in half. There is no doubt that the decision failed to unify the country around the issue, and continues to haunt us to this day, a ghost that simply can’t be excised by wishing it away by ghosts in black robes. There is also a lot of truth to the notion that Roe ironically denied rather than upheld the rights of citizens, as Glenn Greenwald put it, because the decision put the unelected courts in charge rather than our elected leaders. As he argues, “Unless one believes that the will of the majority should always prevail — that laws restricting or abolishing free speech, due process and the free exercise of religion should be permitted as long as enough citizens support it — then one must favor the Supreme Court’s anti-democratic and anti-majoritarian powers.” He continued, “The reaction to Monday night’s news that the Court intends to overrule Roe was immediately driven by all of these common fallacies. It was bizarre to watch liberals accuse the Court of acting ‘undemocratically’ as they denounced the ability of ‘five unelected aristocrats’ — in the words of Vox’s Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?”
At the same time, I can certainly understand the concerns about overturning any right after almost 50 years. Three generations of women have grown up in a world where abortion was protected, and now it might not be. The impact of such a change shouldn’t simply be glossed over either. President Joe Biden encapsulated this challenge in a statement, “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.” It’s a reasonable enough argument to make in my opinion. There will likely be unintended consequences to any decision of this magnitude, and, while I consider myself pro-life in principle, personally I would prefer to have split the middle myself as I understand Chief Justice Roberts wanted to do: Keep the right in place, but allow the states much more flexibility in the restrictions they pass and do not make every restriction into an endless series of battles in court.
Of course, a few unanswered questions present themselves as well. First and foremost on many minds, is the identity and political leanings of the leaker. Conventional wisdom seems to believe it was a progressive, hoping the public outcry would intimidate the Court, but that is not confirmed, nor does that argument make much sense in my view. The Court is certainly aware of public pressure and many have argued that decisions have been made in response to such pressure, but clearly it cannot be seen to change a specific decision directly because of it. Any of the five Justices involved might’ve changed their view in private before the leak, but it’s impossible to see how they can do so now in public and retain any credibility. Some are claiming it might have been a conservative because one of those five Justices already changed their view, and the leaker wanted to “out” the offender in public, trying to force them to vote to overturn Roe. This is pure speculation however, and entirely fruitless unless Chief Justice Roberts’ investigation can identify the person in question.
The other question is, of course, where do we go from here? The Democrats and their progressive supporters are outraged. Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi issued a joint statement, claiming this decision would be “the greatest restriction of rights in the past fifty years — not just on women but on all Americans. Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.” Others in the Democrat Party are demanding big changes to reverse the decision, such as eliminating the filibuster and passing a nationwide abortion legalization bill or simply packing the court. “Democrats need to act NOW—end the filibuster, codify Roe, and defend reproductive freedom,” tweeted Wisconsin state Treasurer Sarah Godlewski and potential Senate candidate in the election later this year. “This fight is too urgent,” she added. Ohio Representative Tim Ryan, now a Senate candidate, concurs, “Control of the Senate has never been more important: it’s time to end the filibuster, pass the Women’s Health Protection Act, and fight like hell to make sure all Ohio families are free to make these critical decisions without interference from politicians in Columbus or Washington.”
Ultimately, one thing is clear: If this decision comes to fruition as the Court’s final say on the matter in June, the American political environment will be substantially changed and the long term fall out is unclear. Conservatives have been laying the groundwork to overturn Roe v. Wade for decades, and their efforts might have finally paid off. We can expect them to be enthused and engaged, and given President Donald Trump appointed three of the five Justices, we can also expect him to consider it a personal achievement. Democrats, however, who’ve soured on the Biden Administration and were less than enthused previously, are also likely to become far more engaged, believing abortion to be an existential issue. How it plays out in practical politics is impossible to predict, but clearly it would be a major issue in the 2022 midterms and 2024 Presidential election, one where both sides run a significant danger of going too far too fast. Abortion is often presented as an either/or issue, but the truth is far more complicated, especially if there is a battle occurring in multiple states. For their part, Republicans might overreach and seek to ban abortion in as many states as possible, believing they have won the day at last, only to learn that’s not what voters wanted in the first place. Democrats, on the other hand, might push for radical changes to the Senate and Courts, and end up with the same result. There is also the specter of partial birth abortion, a subject progressives have studiously tried to avoid, but one which will now fully enter the public sphere. I think most people want to see abortion safe, legal, and rare, but any Democrat crafted bill is likely to include late-term abortions, and they will have to defend that in public. Given the choice between no abortion and abortion up to nine months, complete with spiking an infant’s head, I wouldn’t be surprised if a majority takes the no abortion position.
One thing’s for certain: It will be interesting and unpredictable, as politics normally is, despite the conventional wisdom.