A Crack in the Supreme Court | Opinion

The leak of a Supreme Court draft opinion to Politico, published by that outlet on Monday and confirmed as authentic by Chief Justice John Roberts, may prove to be a political "whodunit" on the same order of magnitude as the identity of Watergate informant "Deep Throat."

That this draft—as well as the preliminary votes of five members of the Court to overrule Roe v. Wade and Planned Parenthood v. Casey, which reaffirmed Roe—was leaked, presumably by pro-abortion clerks within the Court, is unprecedented in the institution's history. The Justices of the Supreme Court, like the appellate judges of virtually every federal and state court, deliberate in secret, and their decisions and draft opinions have always been locked down tighter than a Bond villain's lair. Although the Supreme Court hears matters in the open, it must have the ability to decide cases apart from public scrutiny; otherwise, the Court will lose its status as the anti-majoritarian bulwark of individual liberty and government accountability the Framers intended it to be.

For this reason, the airing of this early draft in a highly controversial case—perhaps the most controversial of modern times—appears to have been a cynical attempt to pressure the Justices to alter their course in Dobbs and perpetuate the Court's nearly 50-year term as the self-appointed "national abortion control board." For the sake of the Court's own integrity, and to safeguard it from inevitable charges that it acts from "political" motives, one hopes that the Justices will maintain the moral high ground not allow themselves to be ruled by the expectations of pro-abortion activists and their media allies.

There is reason to hope the Court will stick to the clear and courageous language of the 98-page draft opinion by conservative Justice Samuel Alito. The opinion is a straightforward and thorough repudiation of every presumption on which Roe was based, including the bogus assertion that Roe and Casey had brokered a détente in the abortion wars that both sides should accept and respect. "At the time of Roe, 30 states still prohibited abortion at all stages," Alito writes. He continues:

In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the "exercise of raw judicial power," and it sparked a national controversy that has embittered our political culture for a half-century.

Supreme Court
WASHINGTON, DC - MAY 03: Police officers set up a barrier divide on the street in front of the U.S. Supreme Court Building as activists attend an abortion rights rally on May 03, 2022 in Washington, DC. In a leaked initial draft majority opinion obtained by Politico and authenticated by Chief Justice John Roberts, Supreme Court Justice Samuel Alito wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country. Anna Moneymaker/Getty Images

The draft opinion is also emphatic on the merits: "We hold that Roe and Casey must be overruled," it declares. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment." And the Court's apparent majority holds no illusions about what abortion really is: "abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called 'fetal life' and what the law now before us describes as an 'unborn human being.'"

If the Court's majority holds, what is the future of abortion regulation in the United States? The draft opinion offers a glimpse:

A law regulating abortion, like other health and welfare laws, is entitled to a "strong presumption of validity." It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development...the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

Lest anyone miss the point, Justice Alito has spelled it out plainly—early gestational protections, dismemberment prohibitions and pre-natal nondiscrimination laws are within the majority's contemplation. The brazen leaker of the draft opinion may have intended to throw sand under the wheels of the anti-abortion train, but this desperate act could very well backfire, as state lawmakers will undoubtedly see the opinion as a green light to move at full speed to enact pro-life state law and policy.

The Supreme Court, in modern times, has often been a mirror of American culture. At the height of the free speech movement, the Court affirmed the right of an antiwar protestor to wear a jacket emblazoned with an obscenity in a public courthouse. Roe itself was the apogee of a nearly 10-year shift in the Justices' views in favor of "privacy" and individual autonomy coinciding with the "sexual revolution" that (perhaps predictably) followed the free speech movement. But that mirror cracked with Roe, with decades of abortion experimentation, with more than 60 million dead victims. Pro-abortion activists have been taking a sledgehammer to the Court's prestige for the sake of abortion rights for a very long time. That damage may never be fully repaired.

"There is a crack in everything," the late singer Leonard Cohen reminded us. "That's how the light gets in."

Steven H. Aden serves as Chief Legal Officer & General Counsel at Americans United for Life.

The views expressed in this article are the writer's own.