The Washington PostDemocracy Dies in Darkness

Opinion The leak shows why abortion policy should be returned to the states

Abortion rights advocates and antiabortion advocates demonstrate outside the Supreme Court on May 3. (Jabin Botsford/The Washington Post)
5 min

O. Carter Snead is a law professor at the University of Notre Dame and author of “What It Means to Be Human: The Case for the Body in Public Bioethics.”

It would be ironic if whoever leaked the draft opinion in Dobbs v. Jackson Women’s Health Organization did it in a desperate effort to prod the Supreme Court to uphold Roe v. Wade and Planned Parenthood v. Casey. Because this breach is one of the starkest examples yet of why the question of abortion law and policy must be restored to our political branches.

The sad reality is that, ever since the court took the matter of abortion out of state legislatures’ hands and vested it with nine unelected judges, Roe has poisoned our politics, our institutions and our civic discourse. The issue of abortion has fueled partisan polarization and sabotaged progress on a host of other important social goals — like when the Center for Medicare and Medicaid Services withheld funding from Indiana’s poor when the state refused to let the money flow to clinics that perform abortions.

Perhaps the greatest damage has been to the court itself. Nomination battles hinge almost entirely on this one area of the law, with the confirmation process descending to ever more depressing levels of incivility.

Now comes the leak, which has destroyed, perhaps irrevocably, the trust essential to the court’s functioning. What was in the draft opinion and the court’s behavior that warranted this breathtaking violation of long-standing confidentiality norms? Was it evidence of criminality, lying or corruption? Had the court overstepped its constitutionally authorized powers? Not at all. It was merely a draft opinion, reportedly supported by five justices at the time of Politico’s publication of it, that reversed Roe v. Wade and Planned Parenthood v. Casey, grounded in familiar arguments well within the mainstream of American jurisprudence.

The immediate reaction in some corners of the progressive legal commentariat was alarmingly admiring. Vox’s Ian Millhiser, for example, tweeted: “Shout out to whoever the hero was within the Supreme Court who said … ‘Let’s burn this place down!’ ”

This is what happens when a profoundly contentious moral, scientific and philosophical question — which demands a careful and compassionate weighing of rights, duties and interests — cannot be debated and, ultimately, answered by the people.

Instead, abortion policy is up for reconsideration only once in a generation, only when convoluted maneuvers succeed in getting the question before the court, and only then in the zero-sum framing of constitutional rights. No wonder desperation is rising, frustrations are spilling over and the prevailing ethos is “by any means necessary.”

The fact that the mere prospect of self-governance on the matter of abortion prompted a nihilistic act of destruction that will damage the court for years to come illustrates the urgency of restoring that self-governance as quickly as possible. Of course, how we restore it matters. Just as it was wrong for the leaker to toss aside decades of custom at the Supreme Court to achieve a particular outcome on Roe, we wouldn’t want to recklessly disregard the Constitution, or judicial precedent, in returning the question of abortion to the states. Fortunately, Justice Samuel A. Alito Jr.’s draft opinion does the opposite.

Alito recapitulates the arguments against Roe and Casey made by thoughtful scholars and justices since their inception, including by supporters of abortion rights — namely, that the text, history and tradition of the Constitution do not support an unwritten fundamental right to abortion. To the contrary, until the latter part of the 20th century, no one seriously thought that the due process clause of the 14th Amendment — which was ratified in 1868, when abortion was a codified crime in three-fourths of the states — precluded the regulation or restriction of abortion.

Moreover, Alito’s discussion of stare decisis carefully analyzed all of the relevant elements of the doctrine and concluded that Roe and Casey were not only egregiously wrong on the merits but also created unstable, unworkable and constantly shifting rules that disrupted other areas of the law. He also concluded that there are not reliance interests, traditionally understood, that warrant retaining these wrongly decided precedents.

Nor would overturning Roe in the way Alito has outlined usher in the dystopia that Democrats have been hand-wringing about. It does not ban abortion. It does not threaten recent precedents concerning marriage or more distant ones relating to contraception; Alito says so specifically and unequivocally. Nor will it, as President Biden suggested, authorize a regime in which states segregate children by sexual orientation.

Instead, the opinion simply allows our country to join the community of nations around the world, including progressive countries such as France and Sweden, that govern themselves on the question of abortion through the deliberative political process.

We need not be afraid to govern ourselves in this domain. The American people are up to the challenge of creating laws and policies that care rightly for mothers, children — born and unborn — and families. If Alito’s draft becomes the opinion of the court, this work will begin in earnest.