The leak of a draft United States Supreme Court ruling written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, which would overturn past court precedents in favor of leaving abortion laws to the states, has ignited intense political debate over the future of abortion laws and the institution of the Supreme Court itself.
This is a polarizing issue — including among our own editorial board — and we anticipate a lot of understandably heated rhetoric from activists, partisans and politicians on each side of this issue. But first, let’s focus on where things stand.
It is important to keep in mind that the draft ruling at hand is just that, a draft, from February.
“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,” noted Politico, which broke the story.
In the 1992 case of Planned Parenthood v. Casey, which affirmed the right to an abortion, and which Alito’s ruling would overturn, Justice Anthony Kennedy is noted to have switched his vote. Kennedy planned to join Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Byron White in upholding restrictions on abortion, but changed his mind.
In this case, according to Politico, Alito was tasked with writing the opinion after a preliminary vote by the justices. What we have is a draft without any indication that any of the other justices had weighed in.
Given that the court tends to release its most contentious rulings in June, and the draft at hand is from February, it is in the realm of possibility that other justices could moderate or limit the scope of the majority’s ruling or write an entirely different one.
Anyone who recognizes the danger of upending American institutions after the events of Jan. 6, 2021, should also recognize the problem with compromising the institution of the Supreme Court.
The leak of this draft ruling breaks the trust among the justices and their clerks, which is necessary for them to do their jobs in good faith, and opens up the court to the same toxic political gamesmanship of the other two branches of government.
What impact the leak will have or what the motives were of the leaker remain unknown, but it won’t be productive to civil discourse.
As for what the draft reveals, Alito’s argument is of no surprise to anyone familiar with the conservative and constitutional originalist line of argument against the notion of a federal constitutional right to an abortion.
“We hold that Roe and Casey must be overruled,” writes Alito. “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.”
He continues, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This ruling, if made official — and that remains an “if” — would have wide-ranging effects.
According to the Center for Reproductive Rights, about half of the states are expected to impose restrictions, and about half won’t, with abortion protected in 21 states, including California, by statute or state Supreme Court rulings.
The court will ultimately decide what a majority of the court decides. There’s a broad array of possible outcomes here and we encourage Americans not to project too far ahead of what we know now.