Quick Take: The Roe v. Wade Draft Decision
A few facts in response to the outburst of progressive hysteria
Fact One: The document that was leaked by a person or persons unknown inside the Supreme Court is a draft document that may or may not reflect the final opinion, which is due out in June.
Fact Two: If the Court’s final decision is the same or similar to the leaked draft it would in no way, shape or form outlaw abortion. Overturning Roe v. Wade, would do no more than restore the prior situation, when abortion was already legal to some extent in various states. It would not overturn any existing state law on abortion, e.g. the very radical California abortion law.
Fact Three: The draft decision’s focus is on the substance of Roe v. Wade, Justice Alito arguing that it was a shoddy piece of work with no constitutional basis. It neither affirmed an existing right nor pointed to any part of the Constitution where the right to an abortion is protected. Instead it conjured up a mythical “right to privacy” and based abortion rights on that.
Fact Four: In no binding legal sense is Roe v. Wade “settled law” or “established precedent.” Strictly speaking there are so such things. While the Court has affirmed as a general principle that precedent deserves respect, it can override precedent and has done so in the past—as the appendix to Justice Alito’s draft decision sets forth in detail.
Fact Five: Whoever leaked this document is guilty of a gross breach of trust and confidentiality that has done great damage to the Supreme Court. The leak was an obvious attempt to intimidate justices by bringing political pressure to bear on them ahead of the final decision’s release. I will add as my opinion that Democrats and progressives, who have talked so much about “institutional norms” in the past, are demonstrating a certain flexibility of principle in this case.
Anything further I might add would continue in the vein of opinion and I’ll save that for subsequent commentary. In conclusion I will just note that the political implications of the sorry incident are likely to be significant—and surprising.
Last night to me it had the look and feel of a fake document. Today's announcement by Roberts says I was wrong. It does seem interesting that the protestors were ready with signs and mobs within minutes for the obligatory protests at the Supreme Court and the protest was even more organized today. Fundraising letters were out in minutes of the release.
In today's push for racial justice and equity it is interesting that the mostly white elite push hard for abortions for all. They ignore that about 40% of all abortions are blacks, 13% of the population. In any other area the libs would be screaming about equity and racial justice.
A little data. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7436774/