Five things to know about the leaked Supreme Court ruling and the future of abortion rights
Published May 5, 2022
The leaked draft Supreme Court abortion ruling is extraordinary and extreme. Cartoon: Steve Benson, Arizona Mirror
The internet has exploded over the last 36 hours in the aftermath of Monday night’s extraordinary leak of a draft U.S. Supreme Court decision in the Mississippi abortion case (Dobbs v. Jackson) that reverses the 1973 Roe v. Wade ruling, which established the constitutional right to terminate a pregnancy prior to fetal viability. Across the world, millions of people are asking how and why the leak occurred, what the draft opinion says, and what – if it is in fact the final word – the opinion would mean in the real world.
Here, therefore, are five basic things that caring and thinking North Carolinians ought to know about what happened, where things stand, and what the future likely holds.
1) The leak was extraordinary. As Neil Siegel, a professor of both law and public policy at Duke University and a former clerk to the late Justice Ruth Bader Ginsburg told me in an interview Tuesday afternoon for the Policy Watch radio show/podcast, News and Views, leaks like this of draft rulings are incredibly rare and don’t happen by accident. Someone at the Court – a clerk, and administrative staffer, or a justice him or herself – intentionally gave it to Politico reporters Josh Gerstein and Alexander Ward.
Indeed, security and leak prevention are extraordinarily tight on the Court. In our interview, Siegel recalled the lecture he received from then Chief Justice William Rehnquist at the start of his clerkship in 2003, in which he was informed that the legal career of any clerk who was found to have leaked information of this kind could be ruined.
2) The leak harms the Court and undermines its legitimacy. As Siegel also told me, the leak is severely damaging to the Court. First, it abets the growing cynicism among Americans about the Court and furthers the perception that it is just another dysfunctional Washington institution.
More immediately, however, the leak damages the Court’s internal deliberations and mechanics with respect to the final ruling in the Dobbs case. As Siegel reminded me, the crafting of Supreme Court opinions is a complex group process. Justices don’t merely decide the case, assign opinion writing duties, and leave it at that. Instead, draft opinions are regularly shared, edited, and debated. Often, members of the Court are persuaded by drafts to alter their views, to work to come up with a better or different draft, or even to switch sides.
Yesterday’s leak undermines that process since any justice who might be inclined to amend their view or work to achieve a different outcome has now been called out publicly and faces the prospect of being portrayed and attacked as a politically-motivated flip-flopper.
3) Supporters of the draft opinion may well be responsible for the leak. In the immediate aftermath of the leak, conservative pundits on Fox News and elsewhere were swift to decry the disclosure as the work of progressive justices or clerks out to undermine the opinion by fomenting public outrage amongst abortion rights supporters. This may be true.
As Prof. Siegel’s analysis indicates, however, it is at least equally plausible that the leak came from a clerk or justice supportive of the opinion. As noted above, by publicly identifying a justice with the opinion, the leak makes it much harder for that person to be persuaded to soften their view or switch sides. In a compelling essay, Slate senior editor Jeremy Stahl says this scenario strikes him as “the shrewdest tactically” of all possible explanations.
4) The draft is remarkably extreme. While he decries the leak, Siegel also says that if this is the Court’s final opinion, it will be an extraordinarily destructive one. The draft ruling – Siegel characterizes the tone as “extreme” and “mocking” – does not represent an instance of the Court merely finding plausible grounds on which to uphold Mississippi’s ban on abortions after 15 weeks; it would serve as complete eradication of all constitutionally-based abortion rights. A long-settled matter of American law would now be thrown wide open to all manner of possible outcomes.
5) Millions of people will suffer if the draft becomes the opinion of the Court. If the Court does follow through and issue the draft as the final majority opinion, the United States will enter a new, dangerous, and unprecedented era of repression. Such an opinion would not only invite individual states to pass complete bans on abortion in all circumstances, but it would also invite them to pass laws criminalizing those who sought to help pregnant people escape to states with more progressive laws. It would, indeed, invite a conservative Congress and president to pass a national abortion ban that would be enforceable throughout the country. Millions will find themselves forced to endure (and hopefully survive) what Prof. Siegel rightfuly describes as government “coerced childbirth.” Never before in American history has a fundamental individual freedom of such magnitude been conferred on Americans and then taken away.
As Rick Glazier, executive director of North Carolina Justice Center – parent organization to NC Policy Watch – observed in an on-the-mark statementTuesday:
"The damage to the nation, the Court, and the Constitution this draft opinion portends is so severe and potentially irreparable that we can only hope reconsideration at the Court occurs in the next several months. No opinion is worth the destructive effects this opinion would usher forth.”