Barry W. Bussey
Someone (we do not know who) will be deemed a hero, by some, that eclipses Hercules. He or she will be branded a demon, by others, that eclipses Eris. That someone just leaked to the news site Politico one of the most explosive stories of our time: the United States Supreme Court (SCOTUS) is about to overturn its 1973 Roe v. Wade[1] decision that gave women a constitutional right to abortion.
What was leaked to Politico was a draft opinion of SCOTUS in the case of Dobbs v. Jackson Women’s Health Organization.[2] That case is concerned with the constitutionality of a 2018 Mississippi state law that banned abortion after the first 15 weeks of pregnancy. In the lower courts, a preliminary injunction against the enforcement of the law was granted. The lower courts relied on the authority of previous SCOTUS rulings that the Mississippi law was unconstitutional.
The Context: Casey, Roe and the Culture Wars
Among those cases used to support the injunction were Planned Parenthood v. Casey[3] and Roe v. Wade.[4] The Roe decision stated that women have a constitutional right to abortion during the first trimester of a pregnancy. The Casey decision overruled Roe by rejecting the trimester structure as to whether the unborn baby was viable. The reworking of Roe by Casey meant that states were entitled to restrict abortion during the first trimester. The Casey court also changed the standard of review of state law from a “strict scrutiny standard” in Roe to an “undue burden standard”. So, as long as the law did not have a purpose or effect of “placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” the law would be held constitutional.
While the Casey decision modified the Roe decision, Roe still stood. Women retained the right to abort an unviable fetus without interference from the state; post-viability, the state could impose restrictions as long as the woman’s life or health was protected. The court recognized the state has a legitimate interest in the health of both the woman and the unborn during the pregnancy.
The leaked Dobbs decision, if finalized by the Court, will totally upset the established abortion law in the US, which is likely to have a profound impact on society. The United States – along with other Western nations, including Canada – has been engaged in a culture war over the very basic principles of human existence. For the last 50 years the so-called “progressive” view has held dominance in all of the major institutions – the universities, the media, the legislatures, and the judiciary. It is almost impossible to overstate the unprecedented changes in the last half century which have discarded or undermined beliefs and practices held for millennia – from the definition of life and marriage to how we deal with death.
It should also be kept in mind that when courts decide to create law by their own decisions, then it should not be surprising if subsequent courts follow suit. For example, the Supreme Court of Canada in 2015 overruled a 1993 decision concerning medical assistance in dying. There is nothing to stop another court down the road from revisiting the 2015 decision and overruling it. That is where we are on many social issues. Abortion is one of them.
The Leaked Dobbs Document
Before considering more on the cultural significance of this issue, let’s consider some of the revealing quotes from the unofficial opinion of the US Supreme Court in the Dobbs decision.
The leaked document has Justice Alito writing the opinion of the court and stating:
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 right 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 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion 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.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “un-born human being.”
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J., concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.[5]
Therefore, according to this leaked opinion – if the decision is not altered by the increased public pressure on the Court – then both Roe and Casey are overruled. It will be left up to the individual states to regulate abortion. There will be no longer any recognition of a constitutional right to abortion in the United States.
The Implications of the Leak (and the Decision itself)
This development is mind-shattering on many levels.
First, the Dobbs decision was not expected to be released until June. The fact it was leaked tells us that someone on the inside of the Court structure deliberately decided to breach the Court’s confidentiality.
Second, why is the leak so significant? The judiciary is to be seen as independent of politics. While judges in the United States are chosen through a political process, there is nevertheless the aspiration that the judges will make decisions based on law, not politics.
When the judiciary is seen as a political instrument, then it loses credibility as an impartial tribunal in the settlement of disputes. The net result is that courts get caught up in power struggles. This is why we expect the judiciary to be focused exclusively on applying the law to the facts before them.
When a court is subject to public opinion then it is the loudest, and often the most aggressive, voice that will carry the day. That is not conducive to legitimacy in the eyes of the public. In other words, if the Court gives in to political pressure and revises this decision, that will compromise the integrity of the courts as a whole.
Third, the Supreme Court is a relatively small institution compared to the other branches of government (the executive and the legislature). Finding out who leaked the decision will be a relatively easy search through such a small group of law clerks, administrative staff, and staff researchers.
There is much speculation about who would commit such a breach, but we should remember that the jury is out, and one needs to be careful about accusations until the perpetrator is discovered. Whatever their motives, we know that the issue of abortion is a lightning rod in the culture war. Unless managed effectively, this leak has the potential to create a lot of political and social unrest.
Chief Justice John G. Roberts, Jr., confirmed the breach in the Court’s news release, wherein he stated:
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. […]
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 here.
I have directed the Marshal of the Court to launch an investigation into the source of the leak.
Whoever breached the Court’s confidence, it might be tempting to conclude that their career will come to a swift end. It could also mean that they are seen as a hero by their supporters. However, I suggest that any notoriety will be short-lived because this decision was bound to be released within a month’s time in any event. So, it would seem that the only reason to circumvent the natural process would be a political move to increase public pressure against the Court. That is a direct attack against the institution of the Court. It is akin to throwing rocks through the window, if not setting it on fire. Whatever our views on abortion, we should be concerned by such an assault on the processes of the law. It is very easy to tear down our institutions, but if we lose faith in them, it will be very difficult to build them up again.
Therefore, as Ed Whelan, a Distinguished Senior Fellow of the Ethics and Public Policy Center suggests, Justice Roberts has at least three choices to get ahead of this storm:
- issue the majority opinion in Dobbs as soon as it is final […]. Other separate opinions could be issued later, and the majority could then have the opportunity to respond to those separate opinions.
- inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. […]
- issue a short order now that concisely states that a majority of the Court reverses the Fifth Circuit, overturns Roe and Casey, and establishes that rational-basis review will govern state regulations of abortion. The order would also state that the full opinions in the case will be issued later.[6]
We have yet to hear how the Court will proceed. The country – indeed the world – watches with great interest as the US Dobbs decision unfolds.
[1] Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County, 410 U.S. 113, see online: https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf
[2] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners
v. Jackson Women’s Health Organization, et al., https://www.supremecourt.gov/docket/docketfiles/html/public/19-1392.html
[3] Planned Parenthood of Southeastern Pennsylvania, et al., Petitioners,
v. Robert P. CASEY, et al., 505 U.S. 833, see online: https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf
[4] For more on the Canadian context, including the 1988 Morgentaler decision that decriminalized abortion (but did not establish any positive right to abortion), see pages 279–281 of my article, “The Canada Summer Jobs Debate and the Democratic Decline” (2019) 91 Supreme Court Law Review (2d).
[5] Dobbs leaked opinion, pp.5-6, online: https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf
[6] Ed Whelan, “How the Court Should Proceed in Dobbs—Three Options” (May 3, 2022) National Review, online: https://www.nationalreview.com/bench-memos/how-the-court-should-proceed-in-dobbs-three-options/
