An astonishing development in the case of Dobbs v. Jackson Women’s Health Organization seems to show that the Supreme Court of the United States is prepared to return abortion law to the States. Or at least, so one gathers from a document that Politico.com represents as a draft Supreme Court opinion. If this draft opinion is authentic, it is the most serious – indeed shocking – breach of security in Court history. More to the point, if this opinion becomes the majority opinion, the Great Sortation will have even more impetus. That is, if someone did not leak it to forestall that result.
History of Roe v. Wade
The case of Jane Roe v. Henry Wade involved a defendant, Norma McCorvey, who tried to get an abortion in Texas. Back then, Texas law made abortion illegal. Attorney Sarah Weddington, age 26, argued her client’s case before the Supreme Court, having had very little experience. Nevertheless, by a vote of 7-2, her arguments prevailed. On January22, 1973, abortion became lawful in every State in the Union.
Technically, abortion on demand up to birth did not become lawful. Instead the court defined “trimesters” of pregnancy in which different levels of State power applied. The decision did prescribe abortion on demand during the first trimester. The third trimester began with “fetal viability outside the womb.” The second trimester includes every day in-between.
This led some wags to say that Roe v. Wade was a decision on collision course with itself. The reason: while techniques for abortion grew less invasive, techniques for saving the lives of premature infants also improved.
Nor is Roe the only precedent for abortion. In 1992 the Supreme Court held 5-4 in Planned Parenthood of Southeastern Pennsylvania v. Casey that Pennsylvania could require the consent of a parent or guardian if applicable, and have the woman wait 24 hours. But more broadly the Court warned States against imposing an undue burden on women seeking abortions.
What have States been doing lately?
The case of Dobbs v. Jackson Women’s Health Organization involves the Gestational Age Act in Mississippi. This 2018 law has a simple effect: no person may perform an abortion after fifteen weeks. The Jackson Women’s Health Organization, the only licensed abortion provider left in Mississippi, sued to block this law. A federal district judge first granted a temporary restraining order, then eventually enjoined the State permanently. The court said the State had not shown that the unborn child would be viable by then. And by the governing precedent, which is Roe v. Wade, no State may forbid an abortion until after an unborn child becomes viable. The Court of Appeals for the Fifth Judicial Circuit affirmed the lower court’s ruling.
Why did the Mississippi Attorney General petition the Supreme Court to review this case? Because the composition of the Court has changed – radically. The appointment of Neil Gorsuch to replace the late (murdered?) Antonin Scalia was not the key change. The key changes were the appointments of Brett Kavanaugh and Amy Coney Barrett.
In addition to Mississippi’s direct challenge to the Roe case, Texas passed its Heartbeat Act. But the Texas Heartbeat Act gives private citizens the standing to sue anyone who performs an abortion upon detecting a heartbeat, or after the provider should have looked for a heartbeat and conveniently refused to do so. As such scarcely anyone yet has standing to challenge the Heartbeat Act.
States drawing battle lines
Other than that, various States are already passing laws either to permit or forbid abortion within their borders. As of December 5, 2021, twenty-one States already had laws to forbid or restrict abortion if Roe v. Wade falls. Texas is one of them – but CNAV has so far seen no evidence that a cadre of genuine pro-life activists is ready to enforce the Heartbeat Act. What we have seen, is a legal troll filing a lawsuit hoping a court will stop him and invalidate the Act.
In the meantime, several “blue States” have passed various “abortion sanctuary laws.” They include California, Illinois, Washington State, Colorado, and Connecticut. The Connecticut law is a direct strike against the Texas Heartbeat Act – though how Connecticut proposes to enforce their law outside of Connecticut remains unclear.
Also, Citigroup pledged to cover travel expenses for any employee seeking an abortion, who must travel out-of-State to get one.
The California law is especially egregious. It absolves woman or provider from any liability for a perinatal death related to an abortion procedure. That effectively legalizes infanticide up to thirty days after birth.
The leaked draft opinion against Roe v. Wade
This document purports to be a draft opinion by Justice Samuel A. Alito, that he or his clerks stamped for circulation to the other eight. This is how appellate courts decide the matters before them. They typically do not meet in conference. Instead, each Justice writes his own draft opinion and sends it around for his colleagues to read. Only after this does the presiding judge poll his panel, then assign someone in the majority to write an opinion. That person’s colleagues can join him, write their own concurring opinions, or write dissenting opinions. This Battle of the Opinions explains why the public must typically wait until June for a decision.
The circulation stamp on this document reads: “Circulated February 10, 2022.” That’s consistent with the heading at the top: “1st Draft.”
Politico provides no provenance on this document, except this statement:
POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.
A different “person familiar with the situation” alleged the following:
- Justices Barrett, Gorsuch, Kavanaugh, and Thomas have already decided to join Justice Alito.
- Justices Breyer, Sotomayor and Kagan are preparing dissents.
- Chief Justice Roberts must still be trying to decide.
Problems with the provenance
The Supreme Court’s home page still lists Justice Stephen G. Breyer as a member of the Court. But Justice Ketanji Brown Jackson won confirmation on April 7, 2022. Perhaps Justice Jackson will take up her duties this fall. In any case she would not have been qualified to write any opinion back in February.
By far the biggest problem with this document is that no one has ever leaked a draft opinion of the Court before today. It represents the most serious and egregious breach of Court security in Court history. Either that, or it represents a fraud on the public and the body politic.
News of the breach has proved impossible to contain. The Blaze and the site We Love Trump, to name two, have stories. These and other secondary sources rely on Politico.com. But a large number of Twitter accounts, including many verified or “blue checkmark” accounts, have covered the story also.
CNAV asks pardon for the language of that last.
Nevertheless CNAV must emphasize the extreme likelihood that someone – maybe one or both of those “Messrs. PFWTS”, or maybe Politico.com themselves – are perpetrating a fraud on the body politic. Anyone can search Oyez.com or some other database for examples of Justice Alito’s Justicial prose. Therefore anyone can “forge” his opinion. Note especially that the document bears no signature, but only a circulation stamp with a date but not a time.
But why would they do it?
Who knows why? Maybe the Messrs. PFWTS wanted to sabotage Justice Alito’s work – more on that below. Or maybe they did it to get their Fifteen Minutes. Or Politico.com ginned the whole thing up as clickbait. And that included the writing of an opinion that looked real.
Either that, or somebody:
- Stole a hard copy of the draft opinion from a Justice’s desk in chambers,
- Ran off a copy in the Court copying machine (does that machine have a register of how many copies it made, and when?),
- Put the original back on the desk so the Justice involved wouldn’t notice, and then
- Gave or sold the copy to Politico.com.
And who can tell whether it wasn’t Justice Kagan or Sotomayor who did it? (CNAV doubts Justice Breyer would do something like this.) Stranger things have happened in this country – including the recent establishment of an Office of Truth in the Department of Homeland Security.
Could it be real?
Whoever wrote this document, clearly did his homework. The authorities the document cites are simple enough to check. They include Roe v. Wade, of course, along with thirty-one other abortion laws that Roe invalidated.
Furthermore, the document shows classic Samuel Alito style. He accuses the original Roe court of, to say the least, sloppiness, and to say the most, outright lies. “Constitutionally irrelevant” and “plainly incorrect” are fighting words. They tell of a Justice who would throw stare decisis (let it stand as decided) to the winds. But they also reveal an author who believes that if anyone has damaged the dignity of the Court, then it is the predecessors of the present Court members, especially in the Roe and Casey cases. If Samuel A. Alito did not write this opinion, then someone has done a first-rate job imitating him.
The author’s citation of Washington v. Glucksberg (1997) is a stroke of genius. Here we have a Jack Kevorkian-style case. Jack Kevorkian had become a folk hero for practicing, and advocating, physician-assisted suicide. The Court came down against such practice, nine to zero. It held that the Due Process Clause protects two kinds of rights, and only two, these being rights:
- One can find in the Constitution, or that:
- “Are deeply rooted in … history and tradition” and “implicit in the concept of ordered liberty.”
That’s exactly the sort of authority Samuel Alito would cite.
What can we expect? Is Roe v. Wade fallen?
Not so fast! Maybe whoever leaked this document intended the opposite effect. The Court has no comment on the breach – thus far. But surely the Court will meet in conference. Much RANTING AND RAVING AND SCREAMING AT THE TOP OF EVERYONE’S LUNGS is a guaranteed result. The Court might decide to disqualify Alito from any such decision – maybe blaming him for the leak. Then Roberts CJ votes with Breyer, Kagan, and Sotomayor JJ. Result: a 4-4 tie, and the decision of the Fifth Circuit stands. Roe v. Wade stands, and the Gestational Age Act falls.
And this would happen for one reason only: to teach the public a lesson about stealing draft Court opinions. Your editor has had instructors revise lesson plans after someone sneaked a peak at them to anticipate homework assignments. The Court could decide that its collective honor and prestige require it to take a similar course.
Even without such a scenario, Gorsuch or Kavanaugh might decide to change his opinion, again, just to teach people a lesson about wrongfully sneaking a peak. The non-action by the Court in Texas v. Pennsylvania (2021) shows that Court members do not seem to care about the implications of their actions. The only two that reliably do, are Alito and Thomas.
One can only hope that this is not the case – while duly noting that it could all be a fraud.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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