Leaked draft on abortion sparks huge uproar over Supreme Court’s motives and credibility

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 his third paragraph, Gerstein writes: “Deliberations in controversial cases have in past been fluid. As draft opinions circulate, justices can and sometimes do alter their votes. Major decisions can be subjected to multiple drafts and vote trading, sometimes just days before the final decision is made. The court’s decision will not be final unless it is published, which is likely to happen 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. Although five of the nine justices voted to follow that path, it is not the same as a final Court vote. It is possible that the essence of that opinion may be retained with some modifications and tweaks.

It is clear to me that a law clerk for one the liberal justices leaked this draft in an attempt to create the media storm we are seeing and possibly influence the final 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 allow abortion to be returned to the states. About half of the states would ban the procedure or invoke older bans that were invalidated under 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 establish a national policy that allows abortion in cases of rape and incest.

It is well-known that journalists tend to lean left on abortion. However, the coverage on MSNBC was filled with pro-choice voices, advocates, lawyers, outraged Democratic officials, reporters being sent into abortion clinics and an interview conducted by Jane Roe’s daughter. I didn’t notice any pro-life spokespersons in the mix.

Perhaps this ruling will have the most devastating consequences. It would undermine confidence in 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 simply mouth these pieties and then vote ideologily-Alito would be joined Kavanaugh, Neil Gorsuch and Clarence Thomas-the ourt begins to look like another political branch.

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. Although he is not part the potential 5-4 majority to overturn Roe, it is unclear if he will write a concurring opinion or join liberal dissenters.

Roberts called yesterday’s leak “a singularly egregious breach…trust” and said that the draft doesn’t reflect the final views 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 is a George W. Bush appointee who has little need to win over hesitant colleagues. The draft opinion on a Mississippi abortion law contains rough language. He wrote that Roe was “egregiously wrong” from the beginning, that its reasoning was “exceptionally poor”, and that the original decision had had “damaging consequences”. “The right to abortion is not deeply rooted” in American history. He also calls doctors and nurses who provide legal services “abortionists”. “

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As for the political fallout, Democrats believe this will energize their base. The DNC was actually fundraising hours after the story was published.

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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.