Leak shows Supreme Court set to overturn Roe v. Wade; what it means – National & International News – TUE 3May2022

What the Roe v. Wade leak means for the court, the mid-terms, and Mississippians

When news broke last night of a leaked draft of a Supreme Court opinion overturning Roe v. Wade, there were some initial doubts as to its authenticity. Chief Justice John Roberts has now confirmed the document is genuine and says the court will be investigating the “egregious” leak.

What the opinion says

The 96-page opinion by Justice Samuel Alito pertains to a 5-4 decision in Dobbs v. Jackson Women’s Health. At the center of this is a Mississippi law that would end abortion access after 15 weeks. But Alito’s opinion goes further than merely upholding the Mississippi law.

The draft indicates that a majority of the court is prepared to overturn the 1973 Roe v. Wade decision entirely. Alito writes that “Roe was egregiously wrong from the start”. He argues that there is no Constitutional right to abortion or to privacy. Thus, he concludes, the matter should be left up to the states rather than the federal government.

Who leaked it and what could be the fallout?

Having confirmed that the draft is real, the question now is whether the leak was intentional or unintentional. If it was unintentional, this suggests a major security breach. Was it a hack? Did someone carelessly leave a copy lying around for a cleaner to find? Could someone have misplaced a phone or laptop? None of these scenarios is impossible, but all seem unlikely.

If it was intentional, it’s almost certain that either a Justice or one of their law clerks is responsible. It would be surprising if a law clerk would intentionally leak this without their boss’ approval, as it would be career suicide. 

The leak is only the latest in a recent series of events that have undermined the court’s integrity and legitimacy. Last year, departing liberal Justice Stephen Breyer raised eyebrows by commenting publicly about the increasingly fractious dynamic among the Justices. More recently, senior conservative Justice Clarence Thomas has been in ethical hot water over the political activities of his wife Ginni. Mrs. Thomas’ support of efforts to overturn the 2020 election have prompted calls for Justice Thomas to recuse himself in election-related cases. 

If one Justice or another proves to be the leaker, it could dismantle any remaining civility and cooperation within the court.

Is this the final word from the Court?

Not necessarily, but most likely. The official ruling wasn’t meant to be announced until June this year. Up until then, drafts will continue to be circulated and revised by members of the court. It’s possible, but unlikely, that some member of the majority could change their vote by that time. Or the language could be dialed back to uphold the 15-week ban without overturning Roe entirely.

It’s unclear at this point whether Chief Justice John Roberts supports the majority decision. One of the six conservative Justices dissented with the 5-4 ruling, but we don’t know which. Roberts’ past statements suggest that he favors a more moderate approach to limiting abortion. But some commentators believe that if Roberts had dissented, senior conservative Justice Thomas would likely have written the majority opinion himself. The fact Alito wrote it suggests that Roberts assigned it to him.

In any case, Roberts’ status as Chief means he may have some say in how the situation ultimately plays out.

What it means for the mid-terms

Pro-choice protesters have been out in force on the Court’s doorstep since yesterday evening. Biden and other prominent Democrats have also come out to strongly condemn the decision. Biden also called on Congress to pass legislation to protect abortion access nationwide. As it stands, they don’t have the votes to overcome a Republican filibuster in the Senate.

However, the prospect of Roe’s demise may give Democrats a much needed focus and fundraising opportunity ahead of the mid-terms. Recent polls have shown Republicans are likely to take the Senate and possibly the House next term. Liberal-leaning voters have been disillusioned by the lack of movement on many domestic Democratic priorities. But, the loss of Roe may galvanize them to go to the polls in November in hopes that a Democratic super-majority will enshrine abortion access at the federal level. 

What it means for Mississippi

Currently, there’s only one abortion clinic in Mississippi, operated by Jackson Women’s Health. The organization’s director Shannon Brewer says she is disappointed but not surprised. Brewer says she’s been preparing for this eventuality. Beyond the 15-week ban, Mississippi also has a “trigger” law in place that will outlaw almost all abortions if Roe is struck down. In that event, Brewer says she plans to set up shop elsewhere, perhaps New Mexico.

For Mississippians who find themselves with an unwanted pregnancy, the death of Roe won’t merely mean a trip across state lines. If the projections reflected in the above map hold true, they may have to go as far away as Illinois to obtain an abortion. For wealthy Mississippians, this might not pose much of a barrier. That is, if they can get an appointment once women from a dozen states find themselves needing the services of an Illinois clinic. For poor Mississippians, this may be all but impossible.

Since the near-total ban in Texas, women’s organizations and clinics have been raising money to help poor women to travel for an abortion. But they’ll now have a much steeper hill to climb.

As has already occurred in Texas, the end of Roe may make it more difficult for women with dangerous pregnancy complications to receive terminations to prevent a life-threatening crisis.

Medication abortions remain a possibility. Women can order the pills online from pharmacies that don’t mind shipping to a state where restrictions are in place. But women may have to take this step without a doctor’s advice or supervision. As often happened before Roe, some women may resort to even less safe methods, with tragic consequences.

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