As I have previously written, there is a pending case before the Supreme Court—Dobbs v Jackson Women’s Health—which deals with the Constitutionality of a Mississippi law that bans abortion, with limited exceptions, after the 15th week of pregnancy. The current state of Supreme Court jurisprudence, embodied by Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey, is that women have a Constitutional right to terminate a pregnancy for any reason without the consent of the prospective father until the point of viability, i.e., when a fetus is capable of life outside the womb. Viability is generally considered to be at the 23rd or 24th week of pregnancy. However, there are cases where babies have been born earlier than the 23rd week of pregnancy and medical advances have made prenatal survival at earlier points of pregnancy possible.
It is widely expected that the Supreme Court will issue its opinion (and concurrences and dissents) in late June or early July of this year. Until the leak of a draft of an opinion in the Dobbs case, it was widely expected that the abortion “right” would be narrowed, giving States the right to regulate or prohibit abortion at earlier points in pregnancy than viability, or even reversing the opinions in Roe and Casey. With the leak, we now know that the Supreme Court, by either a 6-3 or a 5-4 vote (Justice Roberts being the one whose position is unclear) the will reverse Roe and Casey (although the draft opinion is not final, and the Justices can change their position). A common misperception, intentionally spread by many in the pro “choice” (or more accurately, the pro abortion) camp is that a reversal of Roe and Casey would make abortion illegal in all States and territories of the United States. In fact, the Dobbs case deals with the right of a State to prohibit and regulate abortion at an earlier point than the point of viability and a reversal of Roe and Casey would allow States to adopt laws that regulate or prohibit abortion.
In other words, the subject of abortion would return to the democratic process, where it had resided since the beginning of the United States until Roe in 1973. Until Roe, some States prohibited virtually all abortions, some States had virtually no restrictions on abortion and most States were somewhere in the middle, allowing abortion in some cases. In the States that were somewhere in the middle, there was a wide variety of restrictions or exceptions to the right of women to terminate a pregnancy.
What was leaked? A draft opinion by Justice Alito and supported by Justices Thomas, Gorsuch, Kavanaugh and Barret was leaked to Politico. The leak was of the full draft opinion, not merely excerpts or a summary of the holding. This is unprecedented. There have been times, most notably with the Roe v Wade case, where the holding was leaked but there are no prior cases where an entire draft opinion was leaked. There are a limited number of people who have access to draft opinions—the Justices themselves, the Justices’ law clerks (who are law school students or recent graduates of the top law schools in the United States and clerks to other judges) and a small group of employees of the Supreme Court. There is an understanding and agreement and oath given by the Justices, law clerks and employees that all deliberations and communications between the Justices and the draft of opinions are strictly confidential.
Motivation of the leaker. Why would a Justice or a law clerk or Supreme Court employee commit such an egregious breach of trust and risk the breakdown of the collegiality of the Justices and their ability to trust each other and their law clerks and Supreme Court employees? There is no single clear reason but most observers, myself included, believe that the motive was to undermine the legitimacy of the Supreme Court and to intimidate the Justices who voted for the draft opinion with the hope that at least one of them would reconsider his or her vote. I have previously written about the attempt to intimidate Justice Thomas by attacks on his wife, Ginni Thomas, and demands that Justice Thomas recuse himself from all cases dealing with the 2020 election and the January 6 riot or resign from the Supreme Court. So it is entirely conceivable that this leak was a further attempt to undermine the legitimacy of the Supreme Court and to intimidate. A less likely motivation is an attempt to prepare the public for the end of Roe and Casey.
Ethics of the leaker. The Justices, their law clerks and the Supreme Court employees who have access to the communications of the Justices take an oath to keep communications between the Justices and all draft opinions confidential. So the leaker obviously knew that he or she was breaching that oath and the trust that the oath implies. That is clearly unethical although some people argue that breaking an oath and trust is not unethical in the service of a “greater good.” If the “greater good” was to save lives this argument might have merit but almost nobody believes that abortion in the case of a threat to the life of the mother is about to be prohibited. In reality, the leaker likely wants to preserve the “right” of women “to control their own bodies” and to have the ability to decide when and whether to have children or to maintain the power of the Left in America. None of those justifies the breach of an oath and of trust.
What is Constitutional? There is a distinction between what is Constitutional and what is politically desirable. Unfortunately, many people want to blur the line. The Constitution limits the ability of the Federal government and State governments to take certain actions. Whether a law is Constitutional is not dependent on whether we like the law or don’t like the law. The role of the Justices is to determine if a law violates the Constitution and to interpret the law as written. It is not to decide if a law is one they like and support or not. All persons in the United States are protected by the Constitution. It is in Congress and State Legislature (with the agreement of the President or Governor respectively) that decisions are made about what laws to enact with the constraint that the laws are constitutional. That is not to say that every right is explicitly mentioned in the Constitution. However, if a right is not mentioned, then to be a Constitutional right it must be a right generally recognized at the time of the adoption of the Constitution or to be inherent in the rights explicitly mentioned in the Constitution. The “right” created by Roe fails that test.
Precedent. Much has been said about the importance of precedent, which means the holdings in prior cases. All Justices have said that they respect precedent. Respect for precedent, however, does not mean that no prior opinion of the Supreme Court will ever be reversed or modified. To believe that, we would have to believe ether that the Supreme Court never issues an opinion which is wrongly decided or that mistakes should never be corrected. Do people who claim that precedents must always be followed really object to Brown v Board of Education, which reversed the infamous case of Plessy v Ferguson which ruled that segregated schools were Constitutional if they were “separate but equal.” Reversal of prior opinions has occurred many times. Obviously, the Supreme Court is cautious about reversing or modifying prior opinions and they do not want the public to see their opinions as being based on their political beliefs. Many people in the pro “choice” camp have accused Justices Gorsuch, Kavanaugh and Barrett of lying about accepting Roe and Casey as precedents or as “settled law” but that is based on a confusion between respect for precedent and a promise not to reverse or modify a prior opinion.
Some bandy about the term “super precedent”, which apparently means that the damage caused by a reversal would be too grave. An example might be Obergefell, which struck down all laws limiting marriage to one man and one woman. There have been hundreds of thousands of same sex marriages in America and the people in them have organized their families and property and their lives generally around the benefits and burdens of marriage under the law. The women who have already relied on Roe and Casey in their planning are not affected by a reversal, except going forward. No State can make new laws or old ones that trigger back apply to abortions that have already happened. Women now of childbearing age (and in most cases men) will overwhelmingly be aware of a reversal of modification of Roe and Casey and make life decisions with that knowledge. As one of my friends said, every pregnancy (except ones resulting from rape) is a result of the voluntary actions and choices of two people and pregnancy is a natural result or consequence of that choice. We all have to accept the consequences of our choices.
Federalism. An often overlooked effect of Roe was to undermine federalism. The Federal government has certain powers which are spelled out in the Constitution. A great deal of power is reserved for the States. Every State will have unique characteristics and States may take different approaches to an issue. For example, while many States have legalized or decriminalized marijuana possession and use. Others have not. The same kind of difference on many other issues can be found. This is a strength of our system of government.
Democracy. The US is a republic, not a democracy. In a republic we democratically elect representatives to adopt the law. That’s why election integrity is so important. It is ironic that the very people who have endlessly told us of the need to protect democracy are now upset and enraged that the subject of abortion will be debated and determined democratically.
Threats to the Court. We are seeing threats against the Supreme Court and the Justices, many not subtle, including death threats. We have groups like Ruth Sent Us (a truly pompous and preposterous name) publishing maps of where the Justices live. Other groups are organizing demonstrations at the homes of the Justices and at Catholic churches. My good friends at Human Events (a cite you should all check out) have reported on some truly terrible Twitter conversations mocking women who have had miscarriages and grieve about their loss of a child and mocking all people who think a fetus is a person. How real are the threats? Sadly, we have seen the tactics of the Left to have no limit or constraint, up to rioting, to achieve their agenda and retain power.
Paul E. Fisher is an attorney with the law firm of Aronberg Goldgehn Davis and Garmisa and a member of the Board of Directors of The Heartland Institute.
