This editorial board long has supported a woman’s right to choose to have an abortion. We reaffirm that support here, grounded in our belief in a woman’s autonomy over her own body and our long-standing commitment to individual freedoms, even as we lament the Monday night leak of a draft opinion from the U.S. Supreme Court, a further erosion of the fabric of the United States essential to a functioning democracy.
Contrary to what you likely are reading elsewhere, both of those positions can be held together.
And to focus your reading of this or any other piece of commentary only on where the greater emphasis lies, whether the bigger outrage is the leak or the opinion, is to miss the most profound lesson of the darkest day for U.S. democracy at least since Jan. 6, 2021.
The grimness of the moment has been underscored by Democrats championing the leak as a necessarily righteous act and by Republicans failing to understand the consequence of an attack on the settled law known as Roe v. Wade. America fully manifest as a zero sum game is not the nation any of us will enjoy.
The Supreme Court confirmed Tuesday that the leak of a majority draft opinion written by Associate Justice Samuel Alito involved a genuine document. The draft opinion argued for the overturning of the 1973 decision guaranteeing federal constitutional protections for abortion rights, as well as the 1992 decision, Planned Parenthood v. Casey, that largely confirmed that right.
In terms of the decision, Alito clearly believed he fundamentally was arguing an issue of constitutional law, as per his job description.
“Roe was egregiously wrong from the start,” he wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He hardly is alone in his legal point of view and a generous reading of the opinion would strongly differentiate it from banning the practice.
But that is not living in the real world, as Chief Justice John Roberts clearly knows. The Supreme Court does not live in some vacuum removed from the rest of us, oblivious to history and the consequences of its rulings, past and present.
Not only is Roe settled law, it has come up like no other opinion in one confirmation hearing after another, with several of the current court members effectively saying that they accepted both its existence and its unique identity. Understandably, some of those asking the questions during those hearings now feel duped. It sure looks that way.
Roe v. Wade is freighted unlike any other issue in American jurisprudence and its history is singular in terms of its interplay with the most emotional and crucial aspects of any human society, which means how it treats birth, life and death.
The opinion reads as a nuclear option and it has been leaked at a moment of nuclear fear.
To say that the decision is not reading the room is to understate. We urge the apparent majority to continue their work and rethink.
That said, this is a draft opinion and an internal document. No democracy can function without rigorous debate and the Supreme Court is an institution that relies on trust and buy-in as to the sanctity of its process. That’s because its role in this democracy is to be collaborative, not individuated.
If the improvements that naturally occur from collaboration — the minds that are changed, the harsh edges that are softened, the realities that are recognized — are to be undermined like this, the Supreme Court itself will not be able to function. And since it’s at the pinnacle of the nation’s legal system, that means the courts themselves cannot function. And no democracy can survive the collapse of its legal system. That way lies inevitable authoritarian rule. You can support the continuation of Roe v. Wade and still believe all this.
Of course, this issue, and how people have lined up in its wake, is also a microcosm of a riven nation. Historians will see this leak as the latest in a growing line of dysfunctional, anti-democratic events beginning with the attacks on the U.S. Capitol emanating from a big lie about a stolen election, flowing through the paralyzing divisions surrounding matters of life and death in COVID-19, to the current subversion of a vital institution, where it’s likely that the leaker decided that whatever the cost to the process, the ends justified the means.
Whatever the source of this blockbuster leak, and, given the small size of the court, suspects are relatively few, that is at the core of the issue. There is no question that the leak was politically expeditious. It might aid the Democrats in the upcoming midterms, widely seen as likely disastrous and, despite Roberts’ necessary protestations to the contrary Tuesday, it will of course impact subsequent discussions at the court. How could it not?
You could take the position that more of the light of day on Supreme Court processes are warranted, but it’s worth remembering that much of what is in this draft was discernible from the oral arguments. That’s why close watchers of the court had been predicting what Politico rightly published, given the role of journalism in this democracy.
Our view is that nothing is achieved by criminalizing abortions or by forcing women to travel hundreds of miles to procure one in a state such as Illinois, where that right is protected. History teaches us that the number of abortions in America does not change much due to their legality or lack thereof; what changes is the health danger presented to women, both physical and mental. And the rich have always been more likely to be served than the poor.
And, yes, all of that is relevant to Roe v. Wade.
Roberts is right to start an investigation and track down the leaker. Whatever amounts of steam are coming out of their ears, the esteemed justices simply are going to have to learn to trust each other again, since the court without such a trust is toast.
And we hope the court will continue with its process, ideally more cognizant of its place in a nation that feels more and more like it teeters on the brink.
