The Washington PostDemocracy Dies in Darkness

Opinion Alito’s argument is less a refutation of Roe than a starting over

Police officers set up barricades outside the Supreme Court building May 3. (Al Drago/Bloomberg News)

The person, whose name might soon be known and should be forever odious, who leaked the draft Supreme Court opinion is an appropriate symbol of 49 years of willfulness that began with Roe v. Wade in 1973. The leaker accomplished nothing but another addition to the nation’s sense of fraying and another subtraction from the norms that preserve institutional functioning and dignity.

The leaker — probably full of passionate intensity, as the worst usually are — will leave a lingering stench in the building where he or she betrayed the trust of those who gave him or her access to Justice Samuel A. Alito Jr.’s draft opinion overturning Roe. The leaker probably got into a position to commit this infamous betrayal by swearing never to do such a thing. If justice is done, this person will never again practice law but will experience the law’s rigors.

The leaker might have truncated, temporarily, the court’s deliberative process, much as the Jan. 6 mob temporarily truncated a constitutional process in the Capitol. Some of those who have eloquently denounced the previous president’s institutional vandalism will applaud Monday’s vandalism committed across the street from the Capitol. Situational ethics are always in season.

Conservatives have backed enough lost causes to know one when they see one. Nevertheless, they should encourage Roe’s supporters to engage with Alito’s arguments, which include:

  • That Roe, which effectively overturned all 50 states’ abortion laws, curtailed debates and negotiations about abortion and embittered politics by halting the accommodations that had liberalized abortion laws in about one third of the states before 1973.
  • That an abortion right is not deeply rooted in the nation’s history and traditions.
  • That the court has long recognized that stare decisis — respect for precedent — is “not an inexorable command.”
  • That some of the court’s finest actions have involved reversing precedents, and that absent these reversals this would be a less admirable country.

Progressives take understandable pride in their long march through many institutions; their efforts have won them substantial power in the media, academia, corporations and popular culture. But the conservative legal movement, too, has made a slow, patient march. It has passed through law schools, courts, journalism and elections featuring promises about the future composition of state and federal judiciaries.

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The movement’s focus has been on overturning Roe. This is so even among conservatives who favor permissive abortion policies but who believe that Roe epitomizes results-oriented judicial fiats untethered from the Constitution’s text, structure and history.

Ruth Marcus

counterpointIndiana’s cruel abortion bill is a warning of post-Roe reality

If the nation has reached a turning-away from Roe, it is because the conservative legal movement has done the “strong and slow boring of hard boards” (Max Weber’s description of the political vocation). And because Roe provided advocates of abortion rights incantations of “privacy,” not a sturdy scaffolding of reasoning.

The wickedness of the leaker of Alito’s draft is not diminished by the fact that the leak’s consequences are unknown. It might affect negotiations that perhaps have been ongoing among the justices. It might even have affected — might even still affect — what the court says about the Mississippi law proscribing almost all abortions after 15 weeks’ gestation.

Hysteria is the default mode of many Americans of all persuasions who engage in civic arguments. So, by late June, when the court would normally be expected to issue a momentous opinion, such people will have worked themselves into an apocalyptic frenzy. If the court overturns the postulated constitutional requirement for America’s almost uniquely radical abortion regime, there will still be a frenzy, but two months of emotions will have been vented.

Intelligent people of goodwill disagree vehemently about the morality of abortion; defenders of Roe’s reasoning are, however, vanishingly rare. Constitutional reasoning was almost absent from Roe, which makes Alito’s draft opinion less a refutation of Roe than a starting over regarding the core question: What may the community properly do regarding protection of human life between conception and birth?

Soon, 7,383 state legislators might be relevant, perhaps uncomfortably so, to this great question that until 1973 was the business of state legislatures. Suppose the court says that Mississippi’s law is not unconstitutional because the court was mistaken in declaring a constitutional right to abortion. Then 50 state legislatures will reacquire the traditional right to set policy regarding the legal status of prenatal life.

If so, this culturally diverse country will produce various policies. And some “diversity” enthusiasts will suddenly be less so.