Will the Court Overturn Roe v. Wade?

            Yesterday Politico released a draft of a majority opinion showing that the Supreme Court may be on the verge of overturning Roe v. Wade. The idea that the Supreme Court may overturn Roe v. Wade is huge, and such a decision would cause enormous changes to the abortion world as well as save millions of lives of unborn children. According to Politico, Alito wrote the following in the majority decision:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views….

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one….

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended the political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws in every single state….

Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court revisited Roe, but the members of the Court split three ways….

… Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.

Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the fifteenth week of pregnancy…. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted).

The right to abortion does not fall within this category. Until the latter part of the 20^th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” …

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the law of the land demand.

            Chief Justice John Roberts confirmed today that the leaked draft opinion is authentic but not final. He added, “it does not represent a decision by the Court or the final position of any member on the issues in the case.” 

As significant as the overturn of Roe v. Wade would be, an important part of this story is the leak. The disclosure of the draft opinion is rare because the Supreme Court maintains secrecy and tradition in its deliberations. CNN called it “a stunning breach of Supreme Court confidentiality and secrecy.” 

            Such leaks are rare and undermine the unity and trust among the members of the Supreme Court. Roberts ordered an investigation of the leak as shown in the following statement from him. 

This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work there. I have directed the Marshall of the Court to launch an investigation into the source of the leak.

To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce – permanent employees and law clerk alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.

            Investigations of this sort are rare, but this one must be allowed to go where the facts lead. I hope the Marshall of the Court begins with a question similar to this one: who stands to benefit from the leak of this material? The fact that the information was leaked to left-leaning Politico suggests that the leaker hopes to strengthen liberals in their opposition to the decision. The investigation should be thorough, and the person or persons responsible punished according to the law.