Making Sense of the Leaked SCOTUS Decision
The reversal of Roe v. Wade is not as concerning (even for abortion rights advocates), as the leak of a major pending SCOTUS opinion.
According to a bombshell report published by Politico, the Supreme Court has voted to overturn the landmark abortion case Roe v. Wade (1973), as well as Planned Parenthood v. Casey (1992).
Politico also included a leaked first draft of the majority opinion for Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito. Chief Justice John Roberts has since confirmed that the draft is authentic.
This is a shocking and unprecedented leak that only Supreme Court Justices and select clerks had access to. The Supreme Court had not even set a date for the opinion to be published but was likely to be released sometime this summer. As Politico noted, this is the first time in modern history that a draft decision has been publicly leaked while the case was still pending.
Because the case is still pending, the decision is not final. Justice Alito’s opinion has just five votes in favor, indicating that the intent of the leak was likely to let public opinion dissuade at least one Justice from voting in favor. Chief Justice John Roberts would be dissenting from Justice Alito’s opinion, but seems open to allowing the Mississippi abortion law to stand, while not completely reversing Roe or Casey, CNN reports.
While I’m sure that many are focused on the implications of this decision, should it be made final, I first want to discuss the breach of the monumental decision’s draft.
The leak had to come from one of the select few to have access to the early decision draft: the Supreme Court Justices, one of their clerks, or a court staffer. Chief Justice Roberts has already directed the Marshal of the Court to “launch an investigation into the source of the leak.” Consequences of such a leak are unprecedented but could include disbarment, criminal charges, and if the leak came from a Justice, possible impeachment and/or removal. The imperative issue at hand is the attack on the country’s highest judicial institution, the breach of security and trust in an attempt to pressure a Justice to change their decision. This places the Supreme Court in the awkward position of finishing the decision without seeming as if the leak influenced their decisions. One clear thing is that the Supreme Court must act swiftly to finalize the decision with Justice Alito’s opinion, to demonstrate that the Supreme Court will not allow itself to be influenced by public opinion in the wake of this leaked decision.
The purpose of the Supreme Court is to provide anti-majoritarian guardrails to our democratically-based system of governance. Although the United States is a democracy, it is a constitutional democracy. The scope of power granted to legislatures or a 51 percent majority is not absolute but is bound to the Constitution, and the judiciary serves as an institutional hedge against constitutional trailblazing. There is a reason why Supreme Court Justices are unelected, serve for life, and more recently, are not politicians. There is a reason why oral arguments are forbidden to be televised or live-streamed and there is a reason why the Senate, and not the more democratic House of Representatives, votes to confirm Justices. Because it functions independently from public opinion and must be distanced as such; these are features, not flaws of the Supreme Court.
The stakes of a breach within the nation’s highest court designed to usurp judicial review with public outrage must be stated for what it is: an attempt to disrupt the governing institutions of the United States. Whether one is pro-life or pro-choice, pro-Roe or anti-Roe, it should be agreed upon that attempted subversions of judicial review is dangerous and egregious. If the Supreme Court had decided to uphold Roe, and the majority decision was leaked to spark outrage and intimidation from conservative commentators and outlets, that too would be dangerous and egregious. Attempts to undermine government processes and institutions are hazardous to our constitutional democracy, regardless of the political outcomes. Whether it is an illegal, unprecedented leak of perhaps the most consequential decision in modern history or Congressional intimidation from the president to unconstitutionally overturn valid election results, the United States system of governance is weakened by these actions. The Supreme Court must swiftly finalize the decision with Justice Alito’s opinion, just as Congress certified the 2020 presidential election hours after the Capitol building was breached by an unruly mob, to signify that our governing institutions will not yield to external pressure.
Now to my thoughts on the implications regarding abortion access as a result of the Alito opinion.
Let me start by stating the obvious, yet necessary. The Supreme Court's decision to overturn Roe v. Wade places zero restrictions on abortion but merely returns abortion policymaking to state legislatures by clarifying that the Constitution does not guarantee a universal right to abortion. Furthermore, controversy over Roe v. Wade should not stem from pro-choice or pro-life beliefs—the Court specifically stated its intent to steer clear of the moral question of abortion—but should stem from interpretations of constitutional textualism and stare decisis. While it’s easy to get swept up in the more transcendent moral question of abortion, it is important to remember that Roe is an issue of constitutional law.
The majority decision in Roe v. Wade affirmed that the Constitution does grant a universal right to abortion, at least through the first trimester. Deriving a right to privacy from the Due Process Clause of the Fourteenth Amendment, the Court argued that abortion restrictions in the first trimester restrict a female’s privacy and are, therefore, unconstitutional. The majority decision of Roe, penned by Justice Harry Blackmun, used the legal principle of stare decisis to extrapolate privacy rights defined in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Justice Blackmun explained in his decision that an unwanted pregnancy could lead to “distress, for all concerned, associated with the unwanted child,” and therefore abortion restrictions in the first trimester are an unconstitutional burden imposed by the government. The Court later replaced Roe’s trimester guidelines with an unspecified litmus test of “undue burden” in Planned Parenthood v. Casey.
The problem with this decision is the Court’s assumption that the right to privacy is completely independent of the moral ambiguity of abortion. The underlying assumption from Justice Blackmun is that a fetus is not constitutionally protected life, an assumption the Court stated they would not answer. For example, the same argument of distress could apply to a mother of a two-year-old, but the right to life overrides the right to privacy because the two-year-old is a constitutionally protected life. When the Court asserts that the right of privacy is supreme in the first trimester, it is subsequently declaring that a fetus is not a life. Now, this is a perfectly acceptable position within the functions of policymaking but is an invalid legal position because the Constitution neither confirms nor denies that a fetus is a protected life. Therefore, because the Constitution is moot on the question of protections for unborn human life, the Tenth Amendment dictates that it is a state issue, and not one of the federal government unless a constitutional amendment is passed that clarifies whether or not a fetus is a constitutionally protected life.
It is for this reason that many pro-choice advocates, including the late Justice Ruth Bader Ginsburg, have argued that Roe’s decision is deeply problematic.
When it comes to existential questions, such as “what qualifies as human life?” people become passionately entrenched in such beliefs. When some people believe that abortion is “government-funded genocide,” while others contend that abortion restrictions epitomize “government controlling women’s bodies,” one is hard-pressed to think of a solution that doesn’t lead to one side grabbing their musket. Justice Alito’s leaked draft starts by emphasizing this point:
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
Fortunately, our country has a pretty effective way of dealing with broad national disagreements in federalism. States and local governments have the right to develop policies that reflect the views of their own constituents. If a rural, evangelical region believes abortion to be immoral, they have the right to restrict abortion access within that region. Conversely, if an urban, secular region believes abortion to be an important service, they retain the right to liberalize abortion access, and even to publicly fund abortion if they so choose. Federalism minimizes dissatisfaction, encourages local civic engagement, and allows people to choose communities that best reflect their moral standards.