Roe v Wade is Ending
Someone from the United States Supreme Court, most likely a progressive clerk, leaked the Justice Alito authored draft opinion in Dobbs, the Mississippi case seeking to end Roe v Wade. In a 5-4 majority1, the Court strikes down Roe and makes clear abortion is not and has never been a right in the constitution and returns the matter to the democratic processes of state legislatures.
Even Justice Ginsburg argued Roe had been terribly decided, though she supported it. It is, in fact, a terrible decision for many reasons. Constitutionally, not morally, the most egregious issue was the Court seeking to cut off debate on an issue about which there were vehement objections and no clear constitutional issue. No person can read the constitution and find a right to abortion. Worse, abortion is premised on a right to privacy that is itself not in the constitution but just derived from the fourth amendment. Abortion as a right is several degrees removed from the constitution, which meant it should have stated with legislatures and the people to decide state by state.
Abortion in the United States will not now be banned. It will go back to the states and state legislatures, a number of which have passed laws to ratify abortion on demand and a number of which have passed laws to ban it. Federalism was always the solution.
There are a couple of things to note here. I’ll save the biggest for last.
First, this is the first leak of a written draft opinion in the history of the Supreme Court. Undoubtedly it is an effort to both shape public opinion and the members of the Court. Chief Justice Roberts, reportedly not wanting to go all the way, should now go all the way, as should every other Justice, to avoid rewarding the leaker.
There should also be a full investigation involving the FBI to find the leaker.
Second, persuadable justices should see the public reaction to the leak and realize how unhealthy it is for the Court to have propped up Roe for so long. People were driven to hysteria overnight for the perception that some sort of sacramental right would go away. It should show the Court it should never have gotten involved.
Third, note how the people who claim they are against the shattering of norms are on the side of shattering norms here. Abortion is their sacrament. They vent about Republicans shattering norms and undermining institutions, but are fine doing that to the Supreme Court because they do not control it. It must be ruined since they do not.
Fourth, the pro-life movement followed the rule of law to accomplish this goal. They elected Republican Presidents and pushed for pro-life judges. They elected Republican senators who approved those judges and justices. Ironically, it was the Democrats’ own rule-breaking that got the Dobbs case across the finish line. Had Harry Reid and the Democrats not ended the filibuster for nominations, this moment would not have come. Their rule-breaking ended Roe and progressive law clerks’ rule-breaking brought us the first notice of it. Pro-lifers followed the rules and were able to capitalize on the Democrats rewriting the rules. Ironic.
Fifth and, for now, finally, everyone wants to know about the political implications. Contrary to the conventional wisdom, there really won’t be many. We are in May. The election is in November. The people who care passionately about this issue are already on sides. Few are actually directly impacted by it. The economy, inflation, supply chain issues, crime, wokeness, etc. will be big issues people are regularly grappling with.
College-educated women are already voting Democrat. They are the only group giving Joe Biden favorable ratings at the moment. They will already vote Democrat and will not be enough to change the direction of the election.
Most people outside hardcore partisans and press corps members are not abortion voters and this will not make them abortion voters. This is not something voters will confront in their daily lives. Already, in many pro-life states, abortion clinics are rare or nonexistent anyway. In progressive states, it will be as if the decision never happened. In swing states, it’ll be the economy that matters.
And, in the event I am wrong and this fundamentally upends the election, so what? It is the right decision.
Now the Court needs to escalate its release and move on. There is no sense in delaying the inevitable. Also, thank you President Trump, Senator McConnell, and Leonard Leo.
A subsequent leak from CNN says Chief Justice Roberts would uphold the Mississippi law, but would not go so far as to immediately throw out Roe v Wade.
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