The extraordinary overruling of Roe v. Wade
In an unprecedented leak of an opinion of the United States Supreme Court, it appears that the Court has voted to vacate the landmark and notorious 1973 case Roe v. Wade, which invalidated States’ laws protecting the life of unborn children. On May 2, the online magazine Politico posted what purports to be a draft opinion by Associate Justice Samuel Alito, writing for a majority of the Court in the case of Dobbs v. Jackson Women’s Health, which asked whether the State of Mississippi violated the United States Constitution in passing a law prohibiting abortion after 15 weeks of gestation.
The draft expressly overrules Roe v. Wade: “We hold that Roe . . . must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. It is difficult to say which is the bigger news story: the leaked draft opinion, or the content of the opinion itself. And it is important to consider the implications of the decision, assuming it is genuine, for the future of abortion law in the United States.
Historically, the Supreme Court is one of the most impenetrable institutions in any branch of the government of the United States. Year after year, opinions with enormous public import, are closely guarded by the Court until the day that it makes an official announcement of its decision and releases its opinions. Indeed, the most contentious cases seem to be the most closely guarded, not being released until the last week of the Court’s sessions each June or July. Thus, this leaked opinion is among the most extraordinary news events in the history of the Court.
As of this writing, it is mere speculation as to who might have caused the leak. Each Justice of the Court employs four clerks. These are typically young attorneys, only recently graduated from their law schools. Needless to say, it is the most prestigious clerkship in the federal court system, and it goes only to the very best students from the most elite law schools. Each of the 36 clerks this term would have access to the decision, because it is circulated among the associate justices for comment and criticism before it is finalized. In fact, the leaked draft has a routing note, indicating whether or not each justice has read the opinion. If a clerk leaked the draft, it is almost certainly the end of that clerk’s legal career. This is a breach of an attorney’s most important professional responsibility, absolute secrecy where secrecy is required.
Of course, the motivation of a clerk (or justice) to leak the opinion is also speculation. Why would someone destroy his or her legal career by this shocking breach of the Court’s ethics and protocol? It is far more likely that it would be leaked from one of the justices who voted in the minority, probably to foment anger and activism by pro-abortion proponents, senators, and members of Congress. Indeed, almost immediately, Vermont Senator, Bernie Sanders, called upon the Senate to pass federal legislation prohibiting States from passing laws that would protect unborn children. And other pro-abortion politicians have made similar comments.
As to the substance of the draft Dobbs opinion, it is also extraordinary. “Roe was egregiously wrong from the start”, writes Justice Alito. “Its reasoning was exceptionally weak, and the decision has had damaging consequences”. He continues to explain that “Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed”. As such, Alito concludes, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. . . . That is what the Constitution and the rule of law demand”.
This is a reminder that in many of the 50 States, abortion on demand will remain the law. Many states have “trigger laws”, which will go into effect when Roe is overturned, and essentially allow for the same radical abortion regime as Roe did. But other States, such as Mississippi, Ohio, Texas, and others, have legislation prepared that will severely regulate abortion, if not make it altogether illegal in almost every situation. And, of course, there is a continuum of legislation among other States, regulating access to abortion, but not making it illegal in all cases.
Thus, the abortion wars in the United States are not over by the vacating of Roe v. Wade. The battle lines are merely redrawn from Washington, D.C., to the legislative assemblies of the various states. And the activists on both sides are highly motivated by this leaked draft, ready to go to the barricades on every front. But Dobbs is a godsend, in that it at least allows the people to decide this important decision, taking it away from the nine Justices who had no business making the decision in the first place.