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Opinion The leaked draft Roe opinion is a disaster for the Supreme Court

Hundreds gathered outside the Supreme Court on May 2 following the news about a leaked draft opinion indicating that a majority of the court is prepared to overturn the right to abortion. (Video: Julie Yoon/The Washington Post)
6 min

“Disaster” is not too strong a word to describe the leak of a draft Supreme Court opinion that would overrule Roe v. Wade.

A disaster, most clearly, for the court itself, whose secrecy has been breached in a way that is unprecedented. In my view, overruling Roe would be a disaster — for a court reversing itself after repeatedly reaffirming the right to abortion over half a century, and even more for American women who have come to rely on the right to abortion.

But I say “most clearly” because we cannot be certain whether that disaster will in fact ensue — if what was labeled “1st draft” of a majority opinion by Justice Samuel A. Alito Jr. that was circulated Feb. 10 will remain the majority opinion of the court.

Keep in mind: Majorities, particularly in high-stakes cases such as the Mississippi abortion law at issue, can fall apart. We don’t know how Politico, which broke the story, obtained the draft. One theory — my leading theory — is that the leak came from the conservative side, possibly from a clerk for a conservative justice concerned that the seeming majority, ready to do away with the constitutional right to abortion, might be unraveling.

Supreme Court is ready to strike down Roe v. Wade, leaked draft shows

There was a hint of this last week in a Wall Street Journal editorial warning that Chief Justice John G. Roberts Jr. might be trying to dissuade Justices Brett M. Kavanaugh or Amy Coney Barrett from voting to overrule Roe outright. Roberts famously changed his mind after initially voting to strike down the Affordable Care Act in 2012 and “may be trying to turn another Justice now,” the Journal warned. “We hope he doesn’t succeed — for the good of the Court and the country.”

The Journal said its “guess” was that Alito was writing the majority opinion. Is it a coincidence that the Alito draft then leaked to Politico — or is it part of the same campaign to stave off a Kavanaugh or Barrett defection?

Of course, there are other possible culprits: a liberal clerk furious over the loss of abortion rights, perhaps? That makes less sense. Not much would be gained by leaking the draft of an outcome that has been expected since December’s oral argument in the Mississippi case, which involves a ban on most abortions after 15 weeks. Does anybody really think the reaction would change the conservative justices’ minds?

Not that this stopped liberal Twitter from hailing the disclosure.

“Is a brave clerk taking this unprecedented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?” asked Brian Fallon of Demand Justice, a progressive group that has been pushing for court expansion and other measures to rein in the conservative majority.

And not that it stopped conservative Twitter from naming a particular clerk who had been quoted in a 2017 Politico article by Josh Gerstein, one of the reporters who broke the draft story along with Alexander Ward.

Sorry, but whoever the source, leaking a draft opinion isn’t bravery — it’s betrayal. I love a leak as much as the next reporter, and kudos to Politico for its scoop, but unlike Congress and the White House, the court can’t function this way. It’s one thing for information to dribble out after the fact about switched votes, but something else entirely for a draft judicial work product to make its way into breaking-news alerts.

And as much as I fear the consequences of the current six-justice conservative supermajority, I’m not prepared to believe the institution should be destroyed, which would be the consequence of a culture of preemptive leaking.

Now to the impending disaster of the opinion itself, assuming it stands as written. On one level, we knew this was coming, certainly after the questioning in the oral argument showed the other conservative justices seemingly uninterested in following Roberts’s efforts to forge a compromise short of outright overruling.

But anticipating a calamity, bracing for its impact, is different from experiencing it. Reading the draft Monday night was chilling. “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives,” the draft reads, referring to the 1992 ruling that reaffirmed the core right to abortion. It might as well have said: The authority to decide whether to continue a pregnancy must be removed from the woman who will have to bear the child and returned to a majority free to impose its moral choices on her.

The court has overruled decisions before, but it has never removed an existing, established constitutional right. Now, we have every reason to believe it is prepared to do so, and in a way that would give states maximum leeway. If the draft becomes the law of the land, state legislatures will be free to restrict all abortion, in almost all circumstances.

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The only restraint will be whether the law survives the most minimal scrutiny of all: whether it has a rational basis. This means almost nothing. The state’s “legitimate interests,” Alito wrote in the draft, “include respect for and preservation of prenatal life at all stages of development.” A law that barred abortions necessary to save the life of the mother would probably not survive rational-basis scrutiny. That’s about it.

Imagine the 13-year-old raped by her father and forced to give birth to his child. Imagine the desperate mother already unable to provide for her existing children. Imagine the loss of personal autonomy.

There is one possible sliver of a silver lining in this calamity of a ruling. Alito went out of his way to distinguish abortion from other rights, similarly unstated in the Constitution, such as access to contraception, homosexual sex and same-sex marriage. Abortion, he argued, is “a unique act” because it, unlike the others, implicates potential human life.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

You could, perhaps, take some solace in this. Or you could remember that Alito dissented vigorously in the same-sex marriage ruling, arguing that “the Constitution leaves that question to be decided by the people of each State.” If that sounds alarmingly familiar, it should.

Abortion access in America

Tracking abortion access in the U.S.: After the Supreme Court struck down Roe v. Wade, the legality of abortion is left to individual states. The Post is tracking states where abortion is legal, banned or under threat.

Abortion pills: The Justice Department appealed a Texas judge’s decision that would block approval of the abortion pill mifepristone. The Supreme Court decided to retain full access to mifepristone as the appeal proceeds. Here’s an explanation of what happens next in the abortion pill case.

Post-Roe America: With Roe overturned, women who had secret abortions before Roe v. Wade felt compelled to speak out. Other women who were seeking abortions while living in states with strict abortion bans also shared their experiences with The Post through calls, text messages and other documentation. Here are photos and stories from across America since the reversal of Roe v. Wade.