Politico slapped the wrong headline on its huge exclusive about the Roe v. Wade and the highest court in the land:
"Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows."
Without taking anything away from the scoop by Josh Gerstein, I'd say the story doesn’t support that headline.
The New York Times, The Washington Post and other news organizations, following the website, said the Court was "ready" or "poised" or "set" to overturn Roe.
In the third paragraph of his piece, Gerstein himself writes: "Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months."
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A leak of this magnitude is virtually unprecedented in Supreme Court history, with Gerstein obtaining a draft majority opinion written by Justice Samuel Alito. That draft is stamped Feb. 10. So while five of the nine justices agreed to go down that path, that is hardly the same thing as a final Court vote. Of course, it may turn out that, with some tweaks and modifications, the essence of that opinion will stand.
There is little doubt in my mind that a law clerk for one of the liberal justices leaked the draft in hopes of creating the very media firestorm we’re seeing now, and perhaps influencing the ultimate outcome.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022, in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. (AP Photo/Anna Johnson)
I’ve always understood the fierce passions on both sides: the pro-choice people who believe in a woman’s right to choose, and the pro-life people who view abortion as murder. This has been the preeminent culture-war issue in America in the half century since a liberal Court decreed that abortion was legal because of a constitutional right to privacy in 1973.
And yet polls show that about 70 percent of the public opposes the overturning of Roe. The Alito approach would return abortion to the states, and roughly half of them would outlaw the procedure or invoke older bans that were invalidated by Roe. Well-off women in these states would be able to travel to blue America to get abortions, and poorer ones would not, or would have to resort to illegal procedures that flourished before the ’73 ruling. The draft does not set a national policy allowing abortion in cases of rape or incest.
It’s well known that most journalists lean left on abortion, but the coverage on MSNBC in particular was an endless parade of pro-choice voices, advocates and lawyers, outraged Democratic officeholders, reporters being sent to abortion clinics and an interview with the daughter of "Jane Roe." If there was a pro-life spokesperson anywhere in the mix, I missed it.
Perhaps the most devastating fallout, if this ruling comes to pass, would be an undermining of confidence in what is seen as an increasingly partisan Supreme Court.
There is a Kabuki dance in which nominees on the Left and Right vow at their confirmation hearings to keep an open mind and respect the importance of precedents. Brett Kavanaugh, for instance, said at his 2018 hearing that the right to abortion was "settled law."
If the public concludes that nominees just mouth these pieties and then vote ideologically–Alito would be joined by Kavanaugh, Neil Gorsuch, Clarence Thomas and Amy Coney Barrett–the ourt starts to look like just another political branch of government.
Supreme Court Justice Samuel Alito addresses the audience during the "The Emergency Docket" lecture Thursday, Sept. 30, 2021 in the McCartan Courtroom at the University of Notre Dame Law School in South Bend, Ind. (Michael Caterina /South Bend Tribune via AP)
Chief Justice John Roberts, who said he would call balls and strikes, has been an exception, having voted to uphold both same-sex marriage and ObamaCare. He is not part of the potential 5-4 majority on overturning Roe, though it is not clear whether he would write a concurring opinion or join the liberal dissenters.
Roberts yesterday called the leak "a singular and egregious breach of…trust" and said the draft doesn’t reflect the final view of any Court member.
From the Democratic point of view, this is the bitter fruit of the Republicans refusing to grant Merrick Garland a hearing in 2016 but rushing to confirm Barrett in the final weeks of Donald Trump’s term.
Alito, a George W. Bush appointee with little need to win over wavering colleagues, uses pretty rough language in the draft opinion about a Mississippi abortion law. He writes that "Roe was egregiously wrong from the start," that its reasoning was "exceptionally weak," and that the original decision has had "damaging consequences." The right to abortion "is not deeply rooted" in American history. He further describes doctors and nurses providing what have been legal services as "abortionists."
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As for the political fallout, Democrats believe this will energize their base. In fact, hours after the story was posted, the DNC was fundraising on the issue.
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President Biden said "it will fall on voters to elect pro-choice officials this November" and that such a "radical" ruling could lead to the invalidation of laws on marriage, contraception and other crucial issues. Kamala Harris said that "opponents of Roe want to punish women and take away their rights to make decisions about their own bodies." Chuck Schumer and Nancy Pelosi said such a ruling "would go down as an abomination, one of the worst and most damaging decisions in modern history."
U.S. Supreme Court Associate Justice Amy Coney Barrett speaks at the Ronald Reagan Presidential Library Foundation in Simi Valley, Calif., Monday, April 4, 2022. (AP)
But what could Democrats actually do about it, except at the state level? They would have to abolish the Senate filibuster to join the House in making abortion legal, and they haven’t had 50 votes to do that.
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The conservative justices may well get their way in abolishing the decision that their side has detested for 50 years, but their legacy would be an America legally and geographically divided on abortion.
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