This week, someone in the employ of the United States Supreme Court – possibly (but unlikely) even one of the justices – leaked a draft opinion in an ongoing case on the website Politico. Such a leak was not entirely unprecedented, but probably the most important leak of all time, since the entire project has been made public.
The case is Dobbs v. Jackson Women’s Health Organization. At issue in the case is the legality of a Mississippi state law that prohibits abortion after the 15th week of pregnancy, with some exceptions. In the draft opinion, written by Judge Samuel Alito, the court would uphold the Mississippi law and, in the process, overturn the precedent in Roe v. Wade and Casey v. Planned Parenthood. The second of these two cases changed the first significantly but left intact the Roe decision’s ruling that abortion is a constitutional right and that states are limited in how far the practice can be regulated.
Draft notices are just that — drafts. They are distributed to the other judges, reviewed, annotated, revised and sometimes completely rewritten. The first version of a review is rarely identical to the final product. It is not uncommon for minds to change and therefore for the whole result to go from draft to final. Thus, it would be a mistake to assume that the draft is exactly what the court will do. It is still possible, if not unlikely, that the court will decide not to disrupt the Roe-Casey regime and strike down the Mississippi law. It’s also possible, and somewhat more likely, that the court will water down Roe-Casey and leave Mississippi law in place without actually nullifying Roe and Casey.
No one knows who leaked the draft, although it is under investigation. I already wrote that I don’t think it’s one of the judges. It is more likely to be one of the paralegals or administrative employees.
There has been a lot of speculation about the reason for the leak. The one I’ve read the most is that a jurist from one of the left-wing judges published the draft in the hope that he would pressure the judges who are supposed to have approved the draft to change their votes at the conference, or possibly to influence the midterm vote. elections. But I also read that possibly a clerk from one of the five judges who have so far approved the Roe/Casey overturn leaked the draft to prevent anyone from changing their minds, or theirs.
In any event, the leak was reprehensible. The Supreme Court is meant to be and act like a court. It is not a legislature. Its deliberations are supposed to be confidential. Unlike Congress, where debate is public, judges meet and discuss cases in private. The violation of confidentiality is an attack on the dignity of the court.
That didn’t stop some from applauding the leak. One of Hillary Clinton’s aides tweeted about the “brave clerk” who spoke out against the court. And if the leaker’s design was to cause hysteria, it worked. All sorts of absurd statements have been made by politicians and media pundits. Bernie Sanders wants to abolish the filibuster to “codify” Roe v. Wade. (What about Casey?) Several TV pundits said the decision would immediately lead to a nationwide abortion ban. Protesters outside the Supreme Court building waved hangers.
If – and it is always a “if” – the court decides in the direction of the draft opinion, abortion will not automatically be prohibited anywhere. It will, in fact, continue to be legal in Mississippi for the first 15 weeks of pregnancy, and thereafter if the pregnant woman qualifies for one of the exceptions. This will not directly affect the laws of any other state. Rather, the decision will take the matter out of the federal courts and into the hands of the state legislatures.
It is true that some state legislatures will tighten restrictions on abortion. Tennessee will be one and, based on recent legislation, will tighten them more than I think appropriate. But that’s the point. Abortion is a difficult issue. But the place to resolve difficult issues is the legislature, not the judiciary.
How does the public feel? Well, polls show that most Americans don’t want Roe overthrown. But it’s a sloppy poll, as many apparently think knocking down Roe means an immediate ‘ban’. Otherwise, how to explain the supermajority that opposes third-trimester abortions and the majority that supports restrictions at other stages?
Do you have a strong opinion on the subject? Get ready to write your state legislators.