One Month After the Roe Leak: Reflections on the Supreme Court’s Draft Opinion

On May 2nd, 2022, Politico published a story stating that the Supreme Court of the United States of America “has voted to overturn abortion rights.” Shockingly, it included a leaked draft of a majority opinion from the court as proof. This draft, bearing Samuel Alito’s name, was originally dated Feb. 10, 2022, and it is still not known how it was given to Politico. But it did indeed boldly state that “Roe and Casey [two landmark cases upholding abortion rights] must be overturned.” It is hard to describe the magnitude of this story for the American political scene without resorting to cliche, but it was, quite simply, an explosion.

If the leaked opinion does indeed become the final ruling, it will be one of the most significant Supreme Court rulings ever. It will overturn a ruling that had itself been extremely significant, and the issue involved is of utmost moral consequence. This will be an incredible victory for pro-life political activism, scholars and judges who have criticized Roe v. Wade as egregious judicial overreach, and even, to an important extent, those evangelical supporters of Donald Trump. The whole thing is, as they say, yuuuge.

But first a few words of moderation.

The fact that this story relies on a leaked draft means that we do not actually know any final decision of the court. While Politico felt confident to conclude that “the Supreme Court has voted to strike down the landmark Roe v. Wade decision,” such a vote will not be official until the final ruling is issued. The mere existence of a draft opinion does not prove that the final vote has occurred, nor does it demonstrate the result of that final vote. Further, the authors of the Politico article rely on an anonymous source for their claim that four additional justices have joined Justice Alito in this decision. While Politico‘s conclusion seems plausible, other outcomes are also possible, even if unlikely. We do not yet know the final judgment of the court. No celebrations should be had at this time, and we should check our desire to begin “learning lessons” from that unknown judgment.

Now, with that responsible moderation complete, let’s say the following: wow.

Alito’s draft is strong. It begins with a six-page summary which is direct in its wording. “We hold that Roe and Casey must be overruled,” it says, with the following explanation, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…” (5). A little later, Alito takes off the gloves:

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. (6)

Earlier in the summary, Alito also quotes Justice Byron White, who wrote a dissent to Roe v. Wade, writing, “the decision represented ‘the exercise of raw judicial power’” (3).

This sort of prose, along with the various scholarly citations (in terms of both their quantity and their content), gives the impression that Alito has been waiting to unload his thoughts for some time. His work is always academic, but for many it will also be extremely satisfying.

Importantly, the final conclusion is procedural rather than ideological. “It is time to heed the constitution and return the issue of abortion to the people’s elected representatives” (6). This is repeated later in the opinion:

…supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives. (34-35)

In other words, the judgment is not that abortion is illegal or immoral. Rather, the judgment is that earlier decisions that abortion was a matter of constitutional concern were wrong and therefore the Supreme Court of the United States is now returning the power to make decisions about abortion to the state legislatures. The opinion again explains itself this way: “Our decision returns the issue of abortion to the those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office” (61). And yet again it maintains, “that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives” (65). Finally, for good measure, the opinion concludes with this paragraph:

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. (67)

This is the main thrust of the draft. It does not take up the moral or philosophical arguments about abortion. It is not significantly affected by religious commitments. Instead, it is concerned with the legal and constitutional reasoning of two earlier supreme court decisions, Roe v. Wade and Planned Parenthood of Southeastern, PA v. Casey. It examines the arguments used by both cases, critically evaluates them on their own terms, and finds them to be erroneous and, at points, in conflict with one another. The draft demonstrates that the present case before the court, Dobbs v. Jackson Women’s Health Organization, requests the Supreme Court to revisit both Roe and Casey, and then it demonstrates how those two cases either made false statements or failed to demonstrate the necessary proofs to establish their judgment that decisions about abortion are protected by the Constitution of the United States. Alito’s document also spends a good amount of time demonstrating that the Supreme Court can overturn prior rulings, even significant ones, and it explains why overturning Roe and Casey does not threaten any other constitutional rights nor upset the basic order of established US law.

With that summary, what are the most interesting aspects of this opinion? The top takeaway will, of course, be its primary effect. If this draft does indeed become the final judgment of the Supreme Court, then it will once again be possible to dramatically restrict and even outlaw abortion in the United States. Many conservative states already have statutes on their law-books which will immediately declare abortion illegal. Other states will begin a process of legislative battle in attempts to make new laws to this effect, while others will, no doubt, go to great lengths to protect abortion rights and perhaps even assist citizens of other states in their attempt to procure abortions. This will be a spectacular victory for pro-life activists, but it will also signal a new phase in the ongoing culture wars, at a flank that is sure to intensify. This decision opens up new opportunities, but it also requires a lot more action.

Alito’s opinion also redirects the judiciary back to the rules it claims to play by. In dealing with the chief weakness of the Casey decision, the new draft explains the criteria and limiting factors for something to qualify as a right protected by the due process clause of the 14th amendment. To be such a right, an action must be addressed by the first eight amendments to the Constitution or else be a “fundamental right” that is “deeply rooted in history and tradition… and… essential to our Nation’s ‘scheme of ordered liberty’” (11). This latter qualification puts objective limits to the way in which something can be identified as a “fundamental right,” and Alito’s draft proceeds to provide historical evidence by which the claims around abortion can be evaluated. He shows how such a test typically includes the Anglo-American legal tradition, with appeals to the Magna Carta, Blackstone, and major American legislative action and judicial decisions. Much of Alito’s draft is made up a survey of this historical material, and the two appendices, which account for about one third of the length of the document, include impressive lists of the various state laws which outlawed abortion in the 19th century. This history will be especially important for pro-life Christians who are often put on the defensive regarding American legislative history. Anti-abortion laws were not a new reaction in the 20th century, nor were they part of a cynical bargain with reactionaries who opposed the introduction of new civil rights protections. Anti-abortion laws were widespread in the early 19th century. For Alito’s draft, these laws also demonstrate that early American lawmakers and courts did not regard the restriction of abortion as a violation of due process or other fundamental rights.

One of the biggest conclusions from this draft will certainly be the way in which it vindicates the pro-life political strategy, particularly regarding the promotion of a certain brand of judges and Republican presidential candidates who would appoint those judges, presidents including Donald Trump. This is one of those lessons we can’t yet learn. Should the Supreme Court not finally decide in the manner we are now expecting, then any thoughts along these lines will be moot. But should things turn out the way Politico has predicted, then this will be one of the dominant talking points. This opinion represents a big win for the conservative approach to judicial reform. It vindicates pro-life Christians who doggedly pursued that strategy. And, one cannot escape saying, this strategy always depended on electing presidential candidates who would appoint conservative justices, which for at least twenty years has meant Republican candidates. The argument that electing Republicans to the presidency was an effective way to overturn Roe v. Wade is now shown to have been correct–and that includes Donald J. Trump.

Of course the pro-life judicial strategy is bigger than Trump. After all, Samuel Alito was appointed by George W. Bush and Clarence Thomas was appointed by George H. W. Bush. But still, there is no way this opinion gains majority support on the court without a President Trump. Three of the five justices said to agree with this opinion were appointed by Trump. Had Hilary Clinton been elected president in 2016, then those three justices would certainly have been committed to protecting Roe. Had even only two of the three been staunchly anti-Roe, with the other occupying a position similar to that of the Chief Justice, this opinion would not have been written. And so that means that those Christians who voted for Donald Trump in order to overturn Roe were not foolish and were not being manipulated. They were right. And whether or not this is sufficient proof that voting for Trump was the proper Christian decision in all respects, such Christians have earned the right to spike the football. For my part, I confess my erroneous judgment and predictions in this regard, and I am happily willing to applaud their victory and the good it will have on our country, if it does indeed come to pass.

While the mention of partisan politics, and especially Donald Trump, is sure to irritate some readers, Christians of all backgrounds and traditions should welcome the opportunity to legally restrict abortion. Fewer abortions means fewer unjust takings of human life, and that is an unarguably good thing. We should be thankful to God for this kindness, we should rejoice in good news, and we should prepare for more important work in the promotion of human life. Roe and Casey were certain strongholds for principalities and powers, but they were not the principalities and powers themselves. Those dark forces are much larger and reside much deeper in our systems and in our hearts.


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