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The Supreme Court is poised to relinquish its nearly 50-year stranglehold on abortion law and return the debate over whether states may protect unborn human life to the American people and their elected representatives, according to a draft opinion that was leaked to Politico reporters. If the draft opinion authored by Associate Justice Samuel Alito stands, it would be a momentous course correction for the court.
Roe v. Wade, the radical decision that took the abortion debate away from the American people, has myriad legal, scientific, and constitutional critics. Even abortion supporters complained about its weaknesses, as Alito mentions in his draft opinion. Roe was issued in 1973, shortly after the end of the Warren Court, known for pushing through radical changes through the power of a majority of justices rather than on the basis of the Constitution.
“[W]ielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people,” Alito wrote in the draft opinion.
A previous attempt to salvage the court’s abortion edicts, Planned Parenthood v. Casey, was supposed to keep the court from having to hear so many controversial abortion cases from the states. Instead, the court has been inundated with challenges to its complicated abortion jurisprudence. And states have gotten better at fine-tuning their challenges.
Few legal observers felt confident in Roe v. Wade’s ability to survive yet another state challenge, such as the Dobbs v. Jackson Women’s Health Organization case before the court this term. That case deals with a Mississippi law that protects the lives of those unborn children who have reached the age of 15 weeks gestation. The vast majority of countries in the world limit abortion at a similar point in pregnancy.
The draft opinion, which runs 67 pages, is being described as a “tour de force” by those who have read it. It carefully works through all arguments for retaining Roe, and favorably addresses arguments made by other justices who as of February had joined the majority.
“The reported draft opinion is thoughtful, scholarly, and thorough. It does the work that the majority in Roe and Casey refused to do, looking to the Constitution itself to determine whether it includes a right to an abortion. The opinion concludes it does not,” writes Carrie Severino, president of the Judicial Crisis Network and my co-author for our national best-seller “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.”
She adds, “Justice Alito’s opinion does not mince words about Roe and its progeny. He describes Roe as ‘an abuse of judicial authority’ and as being ‘on a collision course with the Constitution from the day it was decided.’”
The Shameful Leak
While Alito’s draft opinion is being welcomed and celebrated by pro-lifers, and strongly objected to by abortion supporters, the way it became public is a horrific scandal.
Someone leaked the draft, almost certainly to pressure the justices to change their views. Alito’s draft opinion from February would go to the concurring justices for feedback, commentary, and fine-tuning. It would also go to justices on the other side of the issue for their knowledge as they write their dissents.
It is unclear who leaked it, but it is considered a grave problem to have done so. Such leaks violate the trust shared by justices. The Supreme Court is viewed more as a family, and the betrayal from the leaker threatens the whole institution.
Still, many on the left celebrated the leak. “Seriously, shout out to whoever the hero was within the Supreme Court who said ‘f-ck it! Let’s burn this place down,” wrote Ian Millhiser, an activist with Vox.
Brian Fallon, the former Hillary Clinton campaign spokesman who became the leader of a dark money group behind the fight against the nomination of Associate Justice Brett Kavanaugh, issued a pretty clear call for intimidation of the court: “Is a brave clerk taking this unpredecented [sic] step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?”
“All Democrats need to show the same urgency as the clerk who apparently risked his or her career to sound this alarm. Those on the inside know best how broken the institution is. We should listen,” he added.
Crowds comprised of many staffers from abortion groups gathered at the Supreme Court immediately after the leak. “Chants of ‘fascist scum have got to go,’ interspersed with the names of the conservative justices,” noted one reporter. Signs included, “F-CK SCOTUS,” and “Sam Alito Retire B-tch.”
The Supreme Court was attacked by a crazed mob in the aftermath of the Kavanaugh confirmation. Hundreds of raucous protesters tried to break down the 13-ton bronze doors. They scaled the building and its statues and threw tomatoes and water bottles at the cars of justices who had attended his swearing-in. The mob even went after Justices Ruth Bader Ginsburg and Elena Kagan.
Mobs had also rioted in Senate buildings in the leadup to Kavanaugh’s confirmation. They had disrupted the official constitutional proceedings associated with his nomination and review.
When a riot broke out at the massive post-election protests around the U.S. Capitol, the entire Democrat and media complex said it was an insurrection that had been egged on by Trump and other critics of the 2020 election.
Even after the attacks on the Supreme Court, Sen. Chuck Schumer went in March 2020 to the steps of the Supreme Court and specifically threatened Justices Neil Gorsuch and Kavanaugh. Referring to an abortion case, he said, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Even liberal activists were appalled.
The attacks on the court have continued through this term. In recent years, Democrats have openly called for court-packing as an intimidation tactic to get the court to rule the way Democrats desire. Justice Clarence Thomas has been pressured to follow an invented recusal standard for having a wife with conservative political views. Justice Gorsuch was the victim of a made-up story leaked to NPR. Justice Breyer was forced to retire when his decision to step down was leaked as part of a high-pressure campaign.
To some observers, the leak seemed to be coordinated with Democrats and other supporters of abortion.
“And right on cue, Biden will give remarks about Roe v. Wade from the White House tomorrow. Completely transparent and devastating political leak,” wrote conservative commentator Katie Pavlich.
Those who care about norms, decorum, civility, institutions, and rule of law — or claim to — must hold the leaker and any co-conspirators fully accountable for this egregious breach. At the very least, they should be disbarred. Criminal charges might also be in order.
Anyone who began fundraising or organizing off the news of the leaked draft should be questioned about his potential role in the leak campaign.
Leaving aside what they did to Judge Robert Bork, Justice Thomas, and a host of people nominated to be federal judges during the George W. Bush presidency, the left has disrupted constitutional proceedings to confirm a Supreme Court justice, threatened to punish the court if it doesn’t rule the way they want on gun cases, violently threatened two justices over a previous abortion ruling, and moved to pack the court to force its desired outcomes. Now it cheers a leak designed to gin up a mob to pressure a particular outcome on one of the court’s most important cases in 50 years.
Roe v. Wade will be overturned. But before the abortion debate returns to the American people, insurrection attempts against the Supreme Court must be quashed.