Is SCOTUS really going to quash Roe v Wade?

Pro-life campaigners in the United States are singing Alleluias after a leak from the Supreme Court. According to Politico, a majority of the nine-justice bench has voted to overturn Roe v Wade.

If true, 49 years of legal abortion, effectively on-demand in most states, belong to the past. From now on, abortion battles will be fought state by state.

Politico journalists Josh Gerstein and Alexander Ward claim that they have obtained a copy of a draft majority decision in Dobbs v Jackson Women’s Health Organization written by Justice Samuel Alito. It is, they write, “a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right.”

Is the leak authentic? The journalists insist that it is. They say that they “received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”

It’s too early for celebrations, though. It will be another couple of months before the judgement is handed down. As the authors of the scoop point out, there is no reason why the justices cannot change their minds:

“Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”

A leak from the US Supreme Court is all but unprecedented. SCOTUSblog, a website dedicated to following SCOTUS cases tweeted that this would destroy trust amongst the justices and their staff. It is “an unforgivable sin”.

Who leaked it and why? No doubt the FBI will be called in to investigate. But why? Cui bono? Who stands to benefit from this scandal?

It seems more likely to be someone on the pro-choice side than the pro-life side. Justice Alito’s purported draft is caustic and severe. According to Politico, he describes Roe v Wade as an “exceptionally weak” decision which was “egregiously wrong” and contends that it has had “damaging consequences” from a legal point of view. His tone is “mocking” and full of “rhetorical flourishes”. Several times he describes doctors and nurses as “abortionists”, a term which the pro-choice lobby regards as derogatory.

In short, Politico portrays the draft document as an exceptionally nasty piece of flag-waving triumphalism. This is bound to enrage the pro-choice lobby and energise last-minute attempts to sway one or two justices. Someone out there must be hoping that the fence-sitters on the Court will decide to spite the flag-wavers.

Even if the justices have lined up in Dobbs v Jackson Women’s Health Organization as Politico claims, the nastiness would be scrubbed out in a final draft. The substance is so painful that Chief Justice Roberts is unlikely to permit his Court to rub salt in the wound with strident rhetoric.

A leak from the Supreme Court on an issue as inflammatory as abortion is criminally irresponsible. “Laws are like sausages,” said Bismarck. “It is best not to see them being made.” If this is true of the executive and legislative branches, it is even more true of the judiciary. In a country as polarised as the United States is today, this unverified and unverifiable leak throws a hand grenade into one of the bitterest debates in American history. It will taint the Court’s eventual decision and open its rulings to allegations of ideological prejudice

Having said all that, and without wanting to sound in the slightest bit smug, this is encouraging news. An estimated 64 million babies have been aborted in the United States since Roe v Wade was handed down in 1973. And this does not count the millions aborted in other countries which played follow the leader.

Even if Roe v Wade is overturned, the war on the culture of death is far from over. But as Churchill said, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”


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