An unprecedented leak of a draft Supreme Court opinion revealed the Supreme Court is poised to overturn Roe v. Wade.
Summary
An unprecedented leak of a draft Supreme Court opinion to Politico revealed the Supreme Court is poised to overturn Roe v. Wade, the 1973 decision that legalized abortion on demand nationwide.
- The leaked document is titled an “Opinion of the Court” from Dobbs v. Jackson Women’s Health Clinic, a case challenging Mississippi’s 15-week abortion ban.
- The 98-page draft opinion, which Politico published in full, was authored by Justice Samuel Alito.
- Alito wrote in the draft opinion, “Roe was egregiously wrong from the start… Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.”
- Reportedly five Justices – Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – indicated they would vote to overturn Roe v. Wade. The three liberal Justices – Stephen Breyer, Elena Kagan, and Sonia Sotomayor – are opposed.
- Sources close to Chief Justice John Roberts indicated to CNN he did not support completely overturning Roe, but is “willing… to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy.”
- The leak of a draft opinion is virtually without precedent and is a grave violation of the Court’s policy of strict confidentiality. Court watcher SCOTUSblog wrote, “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.”
- Politico highlighted ten key passages from Alito’s draft opinion, including: “On many other occasions, this Court has overruled important constitutional decisions. …Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
- The New York Times asked, “what would the end of Roe mean?” The Times clarified the end of Roe would not immediately make abortion illegal everywhere, but 24 states, mostly in the Midwest and South, are likely to ban it if given the opportunity.
- The Washington Post quoted the Supreme Court’s spokeswoman who said, “The Court has no comment,” as protesters gathered at the steps of the Supreme Court in the hours after the draft opinion leaked.
- National Review called it an “egregious leak” that nonetheless represents a “welcome repudiation of Roe, a debacle that barely pretended to grapple with the Constitution in purporting to discover within it a fundamental right to terminate the life of unborn children.”
- Law professor Jonathan Turley told Fox News the leak is an “unspeakably unethical” act that is a “sign of the times” in our “age of rage.”
- The Wall Street Journal observed the opinion would likely have ramifications for November’s midterm elections, although the effects are difficult to predict at this early stage.
Author’s Take
The leak of a draft Supreme Court opinion is an extraordinary breach of Supreme Court norms. It seems likely a progressive clerk (or possibly even a Justice) disclosed the opinion to Politico to try and pressure the Court to change its ruling. As writer Mark Hemingway wrote on Twitter, “Trying to stop a SCOTUS decision from being handed down isn’t that much different than trying to stop an election from being certified. And if I were betting, I would say a nontrivial portion of “respectable” D.C. will spend the next few months excusing and downplaying it.”
The end of Roe v. Wade does not mean abortion will become illegal overnight. Overturning Roe v. Wade would return abortion regulation to the states, whose democratically elected governments would be able to permit or limit the procedure without interference from the unelected Supreme Court. Seven old white men ripped this issue from the democratic process in 1973, and American jurisprudence has been frozen in amber ever since. Innovations in medicine, technology, ultrasounds, and changes in public opinion cannot be reflected in the democratic process because of this decision. Now, evidently, this power will be returned to the people, where it belongs.
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© Dominic Moore, 2022
