On Monday May 2, Politico released a leaked draft opinion from the SCOTUS penned by judge Samuel Alito. Its authenticity was corroborated by Chief Justice Roberts. The opinion suggested the high court will overturn Roe v Wade when it formally rules on Dobbs v Jackson Women’s Health Organization this summer.
Draft opinions are not final; justices can and do change their minds. Nonetheless, if the opinion becomes law, a woman’s constitutional right to an abortion would be nullified. Instead, individual states would determine if the procedure can take place within their respective borders.
After the SCOTUS draft found its way into the public domain, unsurprisingly staunch pro-lifers were elated, while steadfast pro-choice supporters were furious. Notwithstanding, liberal states concentrated in the northeast and west coasts have already committed to maintaining and expanding abortion access. In contrast, thirteen red states have legislation pending to make abortion illegal if Roe is reversed.
This post will not debate the legal and moral underpinnings of abortion. Those arguments have endured for thousands of years – Hippocrates was pro-life, Aristotle was pro-choice – and will continue for the foreseeable future. However, despite the rage and vitriol espoused by extremists on both sides of the abortion divide, many Americans actually have centrist points of view surrounding abortion, a procedure that ~23% of American women undergo at least once before the age of 45. To note:
• Most Americans (60%) believe that abortion should be legal in the 1st trimester.
• Only a small minority (13%) of Americans believe that abortion should be legal in the 3rd trimester.
• While ~50% of Americans see abortion as morally wrong, only 20% believe it should be outlawed.
After Politico dropped their legal bomb, CNN chief legal analyst Jeffrey Toobin said, "I can’t emphasize enough, as someone who has covered this court for 30 years, who’s written two books on the court, there has never been a leak anything like this…There’s never been a leak of a vote — much less an actual opinion, much less in a case of this significance.” Mr. Toobin is not entirely correct. A leak of this magnitude is undoubtedly exceptional, especially given the politically charged nature of the case. That said, while extremely rare, SCOTUS leaks are not entirely unprecedented.
Ironically, the original 1973 Roe decision was leaked to a Time Magazine reporter. In fact, an article was published hours before Judge Harry Blackmun officially announced the decision. Another prominent example was in 1979. Tim O’Brien of ABC reported on two SCOTUS cases, correctly “predicting” the outcome only a few days before their respective rulings. Then Chief justice Warren Burger was so perturbed that he launched an investigation. A staffer at a government printing office was suspected of revealing information to O’Brien but never formally accused.
The Politicization of the SCOTUS
That SCOTUS has become politicized is an unnerving microcosm of our time. Nevertheless, this phenomenon is not unique to our time.
In the 1930s SCOTUS justices blocked numerous proposals of Democrat Franklin Delano Roosevelt’s (FDR) New Deal from becoming law. FDR became so enraged that he vowed to expand the number of seats on the court to produce a majority more to his liking. (Sound familiar?) Fortunately, he did not act. But only because according to The Economist, “one of the justices changed his mind and upheld a contested law on minimum wages.” SCOTUS historians call this pivotal moment in the court’s history “the switch in time that saved nine.”
As it turned out, FDR did not have to pack the court. During his 12 years in office (1933-1945) Roosevelt appointed eight SCOTUS justices. Those appointments portended the most liberal two decades (1950s & 1960s) in the SCOTUS’ history. During that time, members of the GOP cried foul and accused judges of legislating from the bench. (Sound familiar?)
When running for office, Donald Trump promised to appoint right-of-center judges who would take a textualist (typically conservative) view of the constitution. Fortuitous timing (and crafty politics courtesy of Mitch McConnell) allowed him to nominate three in just one term, tilting the ideology of the court firmly to the right, 6 to 3. Trump’s foes were horrified.
Fast forward to today. Biden & Co are now accusing the court of political partisanship with some liberals calling to expand the number of SCOTUS justices. Conservatives pointed out that the tables were turned in the 1950s and 60s, why all the fuss now? Mark Twain was correct, “history doesn’t repeat itself, but it often rhymes.”
Access & Hypocrisy
Estimates differ slightly, but if Roe were to be overturned ~25 states would probably make abortion illegal or strictly curtail access. As mentioned above, 13 (of these) states have pending legislation on the books that would make abortion a crime if Roe were to be reversed. The stark reality is that many of these states have already enacted legislation that make it extraordinarily difficult for a woman to obtain an abortion.
In Roe v Wade, the SCOTUS granted women an unfettered right to an abortion in the first three months of pregnancy and limited rights to the procedure in the second trimester. Planned Parenthood vs Casey (1992) affirmed Roe and required “that states not put an undue burden” on women seeking an abortion. Regardless of one’s view of abortion, as of today it is still a protected right in all 50 states.
One of the cornerstones of the GOP’s philosophy is upholding the rule of law. Yet, the main objective of the pro-life bills they have passed and/or are trying to pass which include but are not limited to: overly restrictive bans pertaining to gestational age, forcing abortion clinics to shudder their doors, making it impossible for doctors to obtain admitting privileges to hospitals, etc. have one primary purpose, circumventing existing law, specifically the Casey ruling of ’92.
Conservatives often accuse liberals of being selective (i.e. being open-minded but only if somebody’s views are commensurate with their own -- which in many cases is true) - and for refusing to uphold the letter of the law if their moral compass dictates otherwise. Indeed, conservatives have lambasted liberals for creating “sanctuary cities,” refusing to prosecute undocumented immigrants, and for willfully ignoring requests from U.S. Immigrations & Customs Enforcement (ICE). In short, for these and other examples, they accuse liberals of ignoring and/or circumventing the law as they see fit. And we agree.
However, by passing legislation that at a minimum places an “undue burden” on a woman seeking an abortion within the time frame made legal by Roe, they are doing precisely the same thing for which they chastise liberals: refusing to uphold the letter of the law if their values dictate otherwise.
Our main gripe with the radical left is that it has hijacked the pro-choice movement and turned it into a pro-abortion movement. Abortion is a very serious decision that is physically and emotionally gut-wrenching for all parties involved. The procedure should not be treated like a trip to the dentist. While we commend activists for standing up for women's constitutional rights, radical leftists who appear as if they are practically proud of abortion and their constitutional right to obtain one have a compromised moral compass. Indeed, in the case of abortion, there is an important distinction between fighting to preserve one’s right to get one - which we support - and being proud of exercising that right - which we do not.