Following oral arguments in the Dobbs abortion case last December, many Supreme Court observers tentatively predicted that Mississippi's ban on most abortions after 15 weeks would be upheld by six justices, and that a majority -- perhaps 5-4 -- might be inclined to uproot the Court's controversial abortion precedent altogether. Based on a bombshell Politico scoop reported Monday evening, it looks as though those prognostications were accurate. If the leaked draft decision is authentic, and experts seem to think that it is (update: it is), at least five justices have decided to overturn Roe and Casey, in a landmark human rights decision. The three liberal justices will dissent. It's unclear how Chief Justice Roberts will come down, though speculation is swirling that he'll join the majority decision on the Mississippi law specifically, while declining to sign on to the wider implications of the ruling. Regardless, this is seismic. A few thoughts -- and I hope you'll read and consider them all, whether you agree or not:
(1) This is not the most important point of analysis, as it's procedural and not substantive in nature, but it still matters a great deal: It is genuinely shocking that we are discussing a forthcoming, contentious ruling prior to its publication, due to what very much looks like an unprecedented ideological leak. This sort of thing is virtually unheard of at the Court, and it's justifiably being described as a stunning affront against the institution itself:
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.— SCOTUSblog (@SCOTUSblog) May 3, 2022
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.— Jonathan Turley (@JonathanTurley) May 3, 2022
...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.— Jonathan Turley (@JonathanTurley) May 3, 2022
The political Left has been ratcheting up its attacks on the Court's legitimacy in recent years, frustrated by a string of undesired outcomes (while apparently internalizing precious little good will when major cases have gone their way). The dangerous, institution-destroying specter of court-packing has been openly entertained. One of the most senior Democrats in Washington engaged in rhetoric so provocative and arguably threatening against specific justices that he earned a rare public rebuke from the Chief Justice. And as Shannon Bream noted on Fox last night, some uncharacteristic and high-profile leaks also have emerged from the Court in recent months -- from the prematurely released retirement news regarding Justice Breyer, to a false leak about alleged and denied internal tensions over COVID-related masking practices on the bench.
Some on the Left have telegraphed for some time that if the Court handed down adverse opinions on certain issues, this one especially, a PR war would be waged against the institution. This element of the war effort was launched from within. The prevailing conjecture is that it emanated from one of the dissenting justice's clerks (this is an interesting read), as a very small number of people would have had access to the documents furnished to Politico. Regardless of one's views on abortion, from a moral or jurisprudential vantage point, this is an outrageous breach of protocol and tradition, and the person or persons responsible should be disciplined swiftly and harshly. It's unacceptable.
(2) The apparently looming demise of Roe and Casey does not, as many people have been led to believe, mean abortion will now be illegal or banned in the United States of America. States will once again set abortion laws. Some will retain radically permissive -- and inhumane, in my view -- regimes. Some will move in that direction, regrettably, as a backlash to the Court's decision. Others will install far more restrictive laws, allowing legal abortions in very few circumstances. Still other states will set policies that fall somewhere in between the polarized fringes, which will be more closely aligned with public opinion. Such regulations might make most first-trimester abortions generally available, with much heavier restrictions on pregnancy terminations in the second and third trimesters. That's what we've seen in Mississippi and Florida, for instance. I'll note that bans on most abortions after 12 or 15 weeks are common in Western nations. The US currently has the terrible distinction of being one of only a tiny handful of countries, including China and North Korea, that permit elective abortions at or after 20 weeks. It may take years for the dust to settle on various new abortion laws cropping up across the country, and it's unlikely that the abortion debate will ever be fully settled (it was clearly not settled by Roe), so standards of state-level legality may ebb and flow well into the future.
(3) Some pundits and media figures are loudly predicting that the Court's abortion ruling will upend the political climate heading into the midterm elections by animating the Democratic base and turning swing voters away from the GOP. Perhaps that will happen. But given everything else occurring in the country and around the world right now, and in light of our profoundly limited collective attention span, I tend to agree with this:
FWIW, I think the impact on the elections is probably less than you'd think. Parties are reasonably well sorted on abortion now. Maybe helps energize a listless D base, maybe shifts some suburban vote. Maybe some outsized effects in gubernatorial and state court races.— Sean T at RCP (@SeanTrende) May 3, 2022
Relatedly, the leaking of the draft decision is highly unlikely to sway any of the justices away from their votes; if anything, I'd imagine they'll dig in, on principle. Underhanded tactics and vitriolic pressure campaigns cannot be allowed to undermine judicial review and independence. The timing of all this, however, could culminate in something of a bizarre anti-climax if and when an identical or substantively similar ruling is handed down at the end of the term (it's possible that the leak will hasten the timeline of its release). The outrage from opponents will flash white hot for a period of time, then will flare again when the decision is ultimately published, likely with somewhat diminished intensity in the second round. This result is already getting baked into the political environment, weeks earlier than expected, further removed from the core election season. I suspect the toppling of Roe will energize some conservative voters, as will inevitable leftist overreach and political saber-rattling. It will also motivate a heretofore demoralized and dissatisfied Democratic base. It could scramble some votes. It could impact some races. My guess is that its overall impact will be relatively marginal because other issues are far more dominant in voters' minds and lives.
(4) The news media, which is dramatically biased on this particular issue, will do everything it can to move the needle on public opinion. They will tout polling showing most Americans opposed to overturning Roe, while ignoring other polling showing sizable majorities in favor of significant restrictions on abortion that haven't been permissible under the Roe/Casey doctrine. Public opinion on abortion is complex and sometimes contradictory, which neither side's ardent adherents like to admit. The press too often cherry-picks data that reflects the abortion-supportive passions prevalent in newsrooms, stubbornly refusing to see or understand why tens of millions of Americans feel differently. Democrats and journalists will whip each other into a feedback loop-fueled lather, driven by an extreme commitment to unfettered elective abortion-on-demand, coupled with hopes about the possibility of an electoral game-changer. Again, maybe I have a blind spot here, but I believe that narrative will generally prove to be overstated wish-casting.
(5) Many pro-life Americans have worked toward this moment for years, presuming the leaked draft is real. Roe was wrongly decided from the beginning, as the new opinion (purportedly authored by Justice Samuel Alito) lays out in great detail. Even legalized abortion advocates like the late Justice Ruth Bader Ginsburg have criticized some of the legal reasoning behind the original decision, which conjured a constitutional 'right' out of whole cloth in 1973. Countless human lives will be saved in a post-Roe world, which is of course deeply satisfying to pro-life Americans. We believe that ending innocent lives is wrong, and that the 'wantedness' of a person does not determine that person's humanity or right to legal protections. It's a human rights issue.
But millions of our fellow citizens view these questions through the prism of women's rights and bodily autonomy (pro-lifers' rejoinder is that at least at some point, there is more than one body in the moral, ethical, and scientific equation). They believe this intensely, and view some, or any, restrictions on abortion as violations of those liberties. It's important to hear them. Many pro-choice Americans, a group that I intentionally differentiate from pro-abortion radicals, will be unnerved by the Court's decision. This is not a moment for face-rubbing or football spiking. Now that it looks as though abortion policy will soon be restored to the people's elected representatives, the pro-life project is really just beginning. The long-sought white whale of overturning Roe has evidently been achieved. The proverbial dog has caught up to the car. The hard work has paid off -- but only to a point. More than ever, advancing the pro-life cause, especially in areas of the country controlled by political leadership that is harshly opposed to that cause, will come down to influencing hearts and minds. Scorched earth and gloating won't advance those interests.
By all means, pro-lifers can and should celebrate an incredibly important step toward justice that seems to be forthcoming. But beyond the initial flurry of new laws in both directions, we will not make lasting gains in defense of life unless we persuade conflicted, ambivalent, or even hostile Americans that unborn life is worthy of protection. Making meaningful progress will require us to listen carefully to differing opinions, offer compassion, consider solutions to related policy challenges, and, yes, be open to compromise. These realizations are humbling in a moment laden with a blend of relief, gratitude and trepidation. I hope pro-lifers will enter this new era of the ongoing struggle with courage and conviction, yes, but also kindness, empathy and humility.