The Leak. According to a leaked draft opinion by conservative Justice Alito, the Supreme Court is preparing to overturn the long-established abortion ruling, Roe v. Wade. Striking down Roe would also have a knock-on effect of overturning additional cases like Planned Parenthood v. Casey that rely on the precedent of Roe. The document is an initial draft and is subject to change before the formal decision, but it indicates Alito believes at least four other justices support his argument.
Opinion of the Court. In the most striking line of the opinion, Alito states, “We hold that Roe and Casey must be overruled.” He continues: “The Constitution makes no reference to abortion, and no such right is implicitly protected by the Constitution.” This statement rejects the core holdings of Roe and Casey that the Due Process Clause of the Fourteenth Amendment grants an inherent right to privacy that protects a woman’s choice to have an abortion. The leaked document indicates that the Court views those cases as examples of “legislating from the bench,” whereby the Court damages the balance of power between itself and the legislature by overstepping its authority and creating law. Essentially, the draft indicates the Court believes elected representatives should decide on abortion law, not the Court.
More than half of all U.S. states have some abortion ban law that is likely to take effect if the Supreme Court overturns Roe v. Wade.
For more on the Court’s opinion, read Abortion in the U.S. History and Perspectives.
Court Barricaded. Immediately following the leak, images of the Court began circulating, showing security fencing surrounding the grounds. A former law clerk to Neil Gorsuch said the justices need increased security, stating, “[This leak] is a major and direct attack on the Court‘s judicial independence, and it puts the justices in danger.” Soon after the news broke, protesters gathered outside the Supreme Court, though no violence has been reported.
Democrats Dissent. Democrats and abortion-rights activists responded to the leaked opinion with horror and anger. Some pointed to the Supreme Court confirmation hearings for the three Trump appointees to the Court, saying they intentionally misled senators about their stance on abortion. Brett Kavanaugh, for instance, told Senator Susan Collins (R-ME) — a Republican who supports abortion — that Roe is “settled law.” Others called for Democratic lawmakers, who hold slim majorities in both chambers of Congress, to move quickly to enshrine the right to an abortion in federal law. President Biden released a statement vowing to work to pass a law codifying Roe. Senate Majority Leader Chuck Schumer (D-NY) promised a vote to do so, though such legislation failed to pass this February and is unlikely to clear the 60-vote filibuster hurdle.
Some progressives, including Senator Bernie Sanders (I-VT), said the Senate must end the filibuster if the legislation fails to garner 60 votes. However, that is also unlikely, given that the body’s Democrats tried and failed to do so earlier this year. Others, like Senator Ed Markey (D-MA), called for expanding the Court, saying, “[The Supreme Court] appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans… We must expand the Court.”
GOP Concurs. The case of Dobbs v. Jackson, which the Court is currently ruling on, centers on the Republican Mississippi Legislature passing a law banning abortion once a heartbeat is detected. To learn more about heartbeat bills, read Abortion in the U.S. History and Perspectives.
Republicans have long believed that Roe sets a poor legal precedent and states should decide on abortion laws. This alleged opinion has verified the Republican stance in the eye of the Court. Following the leaked draft, Republicans were thrilled at the prospect of a legal victory but cautious about how it came to light.
The Rarity of Leaks. While there have been leaks of justice’s potential votes before, such as when conservative columnist Avik Roy cited “third-hand” sources predicting Justice Anthony Kennedy would vote to strike down Obamacare, this leak is unprecedented. The revelation has stunned the legal community as Supreme Court historians, former law clerks, and other Court watchers say they cannot recall a previous instance where a draft decision became public before its publishing. Some observers warn this leak could cause lasting damage to the Court. SCOTUSblog, a popular non-partisan source that covers the Supreme Court, said, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Political Move? Many on the Right were quick to announce that the leak of the draft opinion was a coordinated effort to intimidate the Court, such as Senator Marco Rubio (R-FL), who suggested, “they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion.” However, it is currently unclear who released the document. On Tuesday, Justice Roberts announced, “This betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.” Roberts has since “directed the Marshal of the Court to launch an investigation into the source of the leak.”
Public Opinion. Abortion is perhaps one of the most controversial issues in American politics, with both political parties using it as a significant driver for their voters. However, the public’s opinion on the topic is somewhat complicated and multifaceted. A 2021 Gallup poll found that 58% of respondents opposed overturning Roe, while 32% supported that action. That support, however, varies depending on the context, from the time of a ban to exceptions to abortions based on a genetic disease showing different levels of approval. There are also wide ideological gaps about abortion between the parties, with 80% of Democrats saying abortion should be legal in all or most cases compared to 35% of Republicans (2021 Pew Research poll).
This leaked draft reveals this Court is a hyper-partisan front for conservatives masquerading as an independent body. The Court’s decision to overturn Roe will unleash chaos as anti-choice states rush to restrict women’s fundamental rights. The U.S. already has an exceptionally high maternal mortality rate — a statistic certain to increase when this ruling brings back the era of forced births and back-alley abortions. Women’s reproductive healthcare has been under constant assault for decades, culminating in this reckless move to overturn 50 years of precedent. The legislatures must codify the right to abortion and protect women from this attack on their ability to choose.
The leaking of this Court document is an intimidation tactic to rile up radical left activists and threaten Justices. Never before has a document like this been leaked, setting a dangerous precedent designed to undermine the Court. Already, Democrats have begun radical calls to pack the Court. This incident should be investigated, and the perpetrator should be prosecuted to the full extent of the law for undermining a branch of the government.
Questions & Answers
Have your students take a reading comprehension quiz to see how well they understood the article and different opinions.Launch Activity
- How might this leak impact the justices’ ruling, if at all?
- Do you agree with the argument that legislatures should decide on the issue of abortion, not the courts? Why or why not?
- Does this leak threaten the Court’s independence? Explain your view.
- If the Court overturns Roe, how do you think Democrats will respond?
- What do you believe was the motivation for this leak?