Roe is a Drunk Elephant in the Living Room of American Legal History
Abortion rights aside, it's always been a bad decision.
Hello my babies. It is kind of funny how last week, I was all casual about giving you a book review in the next Jackal, but then someone at the Supreme Court decided to ruin my plans. The good news is that Roe v. Wade is firmly within my wheelhouse, so theoretically this will be an easy read on a complicated subject. Let’s get into it.
So, who leaked Alito’s decision?
If you need a quick catch-up on the big news this week, on Monday night, Politico scored the mother of all leaks and got a hold of Justice Sam Alito’s draft decision in Dobbs v. Jackson Women’s Health Organization, which proposes to ban abortions in Mississippi at 15 weeks. If you want to read it, it’s right here. We can get into its analysis later, but let’s focus on the fun stuff first.
First off, I think that it’s going to be very hard for us to figure out who leaked the decision. The reporter who scooped it, Josh Gerstein, has a background in national security and knows how to protect a source. When Politico published their copy of the PDF file of the decision, its metadata said it was created literally 30 minutes before publication. Pretty standard, but smart nonetheless.
Chief Justice Roberts has said they are going to do an investigation and find out who leaked it, and maybe that will be successful. So, this is all just speculation, but I think at this point it’s just as likely to be a conservative clerk (or Justice) as a liberal working at SCOTUS. In fact, the more I go over it in my head, the more a conservative leaking it makes sense to me. Here’s why: Over the past few weeks, there have been a lot of rumors that Chief Justice Roberts was in the middle of a lobbying campaign to try and get one of the squishier conservative Justices (Kavanaugh or Barret, in this telling) to back off of overturning Roe. These rumors became so intense that the Wall Street Journal published an op-ed at the end of April basically telling Roberts to back off and for the other conservative Justices to hold firm.
If you are, say, a clerk for Alito who helped write this decision and saw that Kavanaugh was getting cold feet, a way to get him to hold his position would be to release it early. For one, you’re showing conservatives “what could have been” if the full-blown id of the anti-abortion section of the Court got its way. For another, any release of an early decision would be more likely to lock in conservative votes rather than convince anyone to change their minds. If a draft of the decision comes out and the final product is different, it looks like the public pressure campaign by upset liberals worked and the Court got scared. That is a much better talking point heading into the midterms rather than forcing candidates to talk about abortion.
Then there was the conservative reaction. No one expressed joy or relief over the decision, or celebrated what would be the culminating win of a 50 year legal strategy. Instead, they talked mostly about the leak itself and how terrible it was for the Court. Mitch McConnell, when asked about the text of the decision and what it would do, pivoted to the leak and said that was the “real story.” He did this for two reasons:
Mitch McConnell doesn’t really care about abortion and knows it is a politically difficult issue for Republicans. And here’s a little secret: Republicans in D.C. don’t really care about it either, and are much happier to use it as a conservative turnout motivator.
McConnell knows that overturning Roe makes a complete GOP sweep of the midterms less likely. He cares more about a win in November than Roe being overturned.
Then, as I was going through this, I started noticing a weird trend amongst conservative voices:
It became a theme:
It was there amongst the more respectable:
And got to one of the worst humans on the planet:
It is, to put it one way, REALLY WEIRD that a bunch of conservatives immediately had the same talking point ready to go the second the decision was leaked. It’s almost as if there was some coordination there, or something.
There are other things that sway me towards the conservative-leak theory. Alito’s draft decision is from February of 2022. Why would a liberal release an early version of the draft, when - if it was a clerk or justice - they almost certainly had access to more recent versions of it. Why not leak a recent version, rather than the one from February? The timing here is also relevant: The Court heard Dobbs in December of 2021. About three months later, Alito prepared his draft, and the majority had signed on. We are now about three months from February, so concurrences are probably floating around, and it’s possible that Kavanaugh or someone else changed their mind and decided to sign on to Roberts’s concurrence.
It basically comes down to two scenarios:
Someone on the liberal side leaked it because they are horrified by the decision. This would make the person incredibly stupid, because it is more likely to solidify votes rather than change any.
Someone on the conservative side leaked it because they are trying to solidify votes for the draft decision, and make it look like public pressure got to whoever decides to go with Roberts on the watered-down decision. This would be incredibly ruthless and savvy.
So, you have the possibility of an incredibly stupid liberal clerk, and an incredibly ruthless and savvy conservative clerk. Take your pick (and in our stupid timeline, both are possible), but I am leaning towards the latter. A major point against the conservative argument, however, is Politico’s reporting, which says that the five-vote majority is still unchanged and the Court is poised to strike down Roe. It is hard to see that and go with the conservative-leak theory, but it still makes slightly more sense to me. Right now, I’d put it at:
45% chance of a conservative leak.
35% chance of a liberal leak.
20% chance that a janitor found it in a trash can and gave it to a reporter.
It would be really hilarious if the last one turned out to be true and all of our speculation was pointless.
Is the Court really about to do this?
Here is the major thing about Roe that I think liberals really need to concede: Everyone knows it is a heavily flawed decision. A lot of times you hear the phrase, “Roe is bad law,” which is a tell in and of itself; the Justices of the Supreme Court are not supposed to make law!
Over the years, liberal legal experts/intellectuals have basically come to agree that while Roe reaches the right outcome, the way it gets there is messy and dumb. In the actual pages of the decision, you have a bunch of non-doctors seriously waxing poetic about the viability and non-viability of the fetus at different stages of pregnancy. That is pretty nuts.
Since Roe was handed down, there have basically been two schools of conservative opposition to it. On the one hand, you have the conservative legal movement, which disagreed with the case on the merits and thought it was poorly decided. Overall, the Court created a right that did not exist previously and took on a role that is (theoretically) reserved for Congress. After all, if Congress wanted to pass a law granting people the right to abortion, they could simply vote on it and send it to the President’s desk. In fact, that was beginning to happen in the 1970s, and Roe basically put the kibosh on it. Here is a great summary of that process and criticism of Roe:
Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
That critique is from well-known conservative jurist Ruth Bader Ginsberg. But she’s not the only liberal critic of Roe. Here is Jack Balkin:
Indeed, there is a cottage industry among liberal law professors devoted to rewriting cases like Roe v. Wade and Brown v. Board of Education that seem to have been inadequately reasoned. Roe is a particularly good example: Liberal and feminist legal scholars have spent decades showing that the result was correct even if Justice Blackmun’s opinion seems to have been taken from the Court’s Cubist period.
Benjamin Wittes flat-out says liberals should stop defending Roe:
Still, if Roe ever does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating justices who might bury it once and for all. […] I generally favor permissive abortion laws. And despite my lack of enthusiasm for Roe, I wouldn't favor overturning the decision as a jurisprudential matter. A generation of women has grown up thinking of reproductive freedom as a constitutional right, and the Court should not casually take away rights that it has determined the Constitution guarantees. Stability in law—particularly constitutional law—is critically important; the Supreme Court would do well to remember that. Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion-rights proponents were forced to make their arguments in the policy arena (rather than during Supreme Court nomination hearings), and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions.
Here is Richard Gregory Morgan getting to the heart of the problems with Roe:
The standard criticism of Roe v. Wade is that the Supreme Court indulged in "Lochnering": the improper second-guessing of a legislative balance. Rarely does the Supreme Court invite critical outrage as it did in Roe by offering so little explanation for a decision that requires so much. The stark inadequacy of the Court's attempt to justify its conclusions - that abortion implicates women's "privacy," that only the most important state interests may supersede that right, and that they may do so only after certain stages of pregnancy - suggests to some scholars that the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function. Professor Ely, the first to cry "Lochner," could only adduce from the opinion that the Court "manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." Even some who approve Roe's form of judicial review concede that the opinion itself is inscrutable.
To explain “Lochnering” very quickly: Lochner v. New York was an early 20th Century case that basically determined that the Constitution contained a “freedom of contract” in its pages, even though the phrase itself never appears. Basically, the Court held that New York’s labor laws that kept employers from working their employees to death were unconstitutional. Lochner in a nutshell:
The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment to the Federal Constitution. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right.
The case was overturned in West Coast Hotel v. Parish, which came about 32 years later. The Lochner era is generally regarded to be a bad period where a lot of people died in the workplace because States were unable to regulate employers, and it was all thanks to a made-up phrase that didn’t appear in the Constitution.
Roe itself suffers from the same problem. In a case that preceded Roe, Griswold v. Connecticut, the Court similarly found that the Constitution contained a “right to privacy” within its pages, even though the phrase isn’t there. Roe is basically birthed from Griswold’s “right to privacy” language, and a lot of conservative legal scholars think that has poisoned it since jump street.
Is Alito’s decision nuts?
This is where it’s worth noting that Alito’s decision basically represents both the conservative legal movement’s opposition to Roe, and the social conservative opposition to Roe, which basically seeks to limit abortion on a national level. Weirdly enough, I think that while Alito nicely sums up the Constitutional problems with Roe, the way he gets there is - at times - horrific. For one, Alito positively cites to Sir Matthew Hale, a jurist from the 1600s who thought marital rape was totally fine.
My guess is that those citations don’t make it into the final draft. Alito also goes into detail about how during the ratification of the 14th Amendment (the basis for the “right to privacy” that protects Roe), abortion was mostly illegal. There are historical problems with that, namely that abortion laws may have been on the books, but in reality they were rarely enforced.
Some of Alito’s logic is also deceptive:
One thing Alito does in his decision is thread the needle: He ultimately says that the abortion protections in Roe and in Planned Parenthood v. Casey (a subsequent case to Roe that clarified abortion rights) are unconstitutional, but he does not want to gut all of the due process cases going back to Griswold. However, he does lay the groundwork for criticism of these cases, and if you don’t think they are on the table, then I have an incredible, ocean-front real estate opportunity for you in Montana. Gabe Malor puts it succinctly:
If Alito got a valid case before him that overturned same-sex marriage (Obergefell), he would immediately vote to nix it. The problem right now is that he doesn’t have the votes to do it (Roberts wouldn’t be on board, neither would Gorsuch, and Kavanaugh is probably squeamish too). But if a future, more conservative SCOTUS got a hold of such a case, they could easily use Alito’s language as a framework.
That said, I do think liberals have to come to terms with how the country feels about abortion. Many on the Left cite to polls that show somewhere around 60-70% of Americans do not want to see Roe overturned. But when you break down the polling, a clear majority of Americans do support restricting abortion after the first trimester, and an even bigger majority would agree with the limitations being set in place by Mississippi in Dobbs. “Shout your abortion” is also a thing that most Americans find icky, if not repulsive.
In addition, America has some of the most liberal abortion laws in the world (it gets muddy when you consider the vagueness of “welfare of the mother,” but it’s mostly true). A lot of the Scandinavian countries that Lefties pine for have more restrictive abortion laws than the U.S. and have not descended into anarchy. The most likely outcome is that returning abortion to the States wouldn’t change anything all that much.
On the flip side, I think conservatives should also admit to themselves that statistics do show that the more restrictions a state has on abortion, the worse the health outcomes are for mothers. That is a fact, but it may be one conservatives will be willing to trade if it saves the lives of more babies.
A reckoning that I have had over the past few years is that a huge chunk of the religious right (a group to which I sort of belong) has been propped up for political purposes. Virtually no Republicans in Congress actually want to see Roe overturned, because the promise of conservative judges to yeet Roe out of the law books has been one that drove people to the polls (in the case of Donald Trump, it got them voting for a guy who almost certainly paid to have an abortion done). With it gone, Republicans lose a major motivation tool.
It sucks to feel used. The pro-life movement is often framed as explicitly religious, and for that reason, it is assumed that the Christian church has always wanted to ban abortion. The actual history is much more complicated, and the church itself has differed on whether or not abortion is OK in the first trimester. And the reason 83% of Jews (even the Orthodox) support abortion is because the Old Testament basically allows for it. Christians have a long, long history of protecting the unborn, but it is 100% true that there was major disagreement in the early church as to whether or not an abortion before “quickening” was a sin.
I am ready to (excuse the phrase) throw the baby out with the bathwater of this debate and simply say that abortion is bad, and in a perfect society we would have loads of support for mothers who have unwanted pregnancies, from fully paid-for childcare, to monetary support, to free margaritas when they need to unwind. Unfortunately, we don’t live in that society, and the one we do live in has a pro-life side almost universally opposed to letting things like the Child Tax Credit continue (kudos to Senator Romney).
So, what happens now?
Now we wait for a decision. Michelle Goldberg thinks overturning Roe will deepen our divisions:
Blue states, meanwhile, are setting themselves as abortion sanctuaries. Oregon lawmakers recently passed a bill to create a $15 million fund to help cover abortion costs, including for those traveling to the state for the procedure. Something similar is in the works in California. Abortion clinics in Illinois, bordered by several states where abortion is likely to be made illegal, are preparing for a huge influx of patients.
The right won’t be content to watch liberal states try to undermine abortion bans. As the draft of a forthcoming article in The Columbia Law Review puts it, “overturning Roe and Casey will create a novel world of complicated, interjurisdictional legal conflicts over abortion. Instead of creating stability and certainty, it will lead to profound confusion because advocates on all sides of the abortion controversy will not stop at state borders in their efforts to apply their policies as broadly as possible.”
While I do think returning the issue to the States will finally allow us to have a policy debate about abortion out in the open, I think liberals need to prepare themselves for what comes next from the social conservatives, which would be national limits on abortion once Republicans get control of Congress. Likewise, any conservative who is currently telling themselves that this won’t be a big issue in the midterms is coping. Midterm elections are mostly about turning out your base and overturning Roe would be the biggest turnout boost for Democrats in a generation. In other words, hold on to your butts.
Should-Reads:
David French has a piece on abortion that is good.
Hey, there was a jobs report today and it was good!
See you all next week!
Really great Dave