Turbulence Ahead
What we learned (or didn't) from a leaked Supreme Court draft opinion, and what happens next
The leak of a draft opinion of the Supreme Court has catapulted the topic of abortion into the national and even international consciousness once again. It has reignited a millennia-old debate over arguably the single most difficult moral question, on the boundaries of personhood and the beginning of government-recognized rights, along with many related issues.
I obviously won’t be resolving that debate in a single blog post, but you’re welcome to read my previous posts on the subject: A Real-Life Trolley Problem and What if we actually believed that life begins at conception? Either way, oceans of ink have already been spilled trying to map moral intuitions and religious revelations onto the contours of a gestational process that we understand today better than ever before. What I can offer, though, is answers to some basic questions about the latest developments, and my perspective on how to think through them.
What happened?
In case you’ve been tuning out the news this week, a full draft opinion, dated to February and apparently supported by a majority of the Supreme Court, in the case of Dobbs v. Jackson, regarding a Mississippi 15-week abortion restriction, was leaked to Politico. Yet despite the ensuing media firestorm, it hasn’t really changed the topline legal situation.
It was already clear to Court watchers since the oral arguments for the case last fall that the Supreme Court appears poised to overturn its previous rulings in 1973’s Roe v. Wade, 1992’s Planned Parenthood v. Casey, and subsequent cases that confirmed them, in the tranche of cases scheduled to be released next month. The questions that the five justices in the apparent majority posed to lawyers in the case had already made their thinking and eventual stance apparent, and the only remaining question was whether one of them would get cold feet as the opinions were drafted.
That’s still the main question, and the leaked draft opinion does little to resolve it. It gives a picture of the particular reasoning the majority might aim to use, but it doesn’t substantively change the picture we already had from oral arguments. All it’s really done is to fan the flames.
Why are pro-life politicians nervous? Shouldn’t they be celebrating?
This is indeed the culmination of a decades-long campaign for the pro-life movement. But celebration would clearly be premature — it isn’t a done deal! And there’s even specific history to give pro-lifers pause: In Casey, Justice Kennedy reportedly was prepared to overturn Roe but changed his mind at this very stage to reaffirm its essentials. Justice Kavanaugh, his replacement, might be thinking similarly.
In this case, we’re still very unlikely to see Mississippi’s 15-week limit struck down, as Chief Justice Roberts, who isn’t part of the majority, appeared from oral arguments to be in favor of reducing the viability limit set by Casey but maintaining its overall structure. That would be significantly different from the draft opinion, but it would still represent a clear change in the limits of abortion law.
An end to Roe would also just be the beginning to political contestation over the vast majority of abortion law, both federally and in the states. Having spent 49 years asking for the keys to the car, pro-life politicians now need to be able to drive.
Why are pro-choice politicians like President Biden changing the subject to other potential consequences like gay marriage? Isn’t abortion enough?
While Biden has a natural coalition-driven political instinct to rally as many disparate interests as possible, the legal question there is also legitimate. We don’t have to get into the details of the various clauses of the 14th Amendment to see why — why would a court that moved rightward, overturning a previous 5-4 majority in Casey, not be expected to do the same to the 5-4 decision in Obergefell?
The draft opinion at least attempts to address this question, drawing a line between those two topics by rooting the concern in the rights of the fetus, a consideration that simply doesn’t exist in the question of gay marriage or other issues. While this is clearly what’s going on morally, the legal distinction is still murky.
But the politics of the two issues have also significantly diverged, something that Justice Amy Coney Barrett alluded to in her confirmation hearings. Even as they focus on instruction in schools, Republicans are simply no longer contesting the legality of gay marriage on a nationwide level, let alone the rights of contraception (Griswold v. Connecticut) or sodomy (Lawrence v. Texas) similarly rooted in the 14th Amendment.
There are no similar “trigger” laws in those domains that will go into effect should the Supreme Court rule differently. And with such a nationwide political consensus, there’s always a route to ensuring such rights nationwide that would supersede the Court should it deviate too far from public opinion: Pass an amendment to the constitution.
If the final decision resembles this draft, what will happen next?
Simply put, the abortion question, rather than being resolved by the courts, will be settled by electorally accountable politicians rather than judges, i.e. Congress and state legislatures.
Positively, this change would go a long way to correcting the incentives — rather than investing all of their efforts on the presidential races, activists on both sides would focus their efforts on winning the far more numerous and varied legislative elections. Almost anything that will increase the power of legislatures relative to the executive and judicial branches will be a sorely needed corrective.
In an ideal world, Congress would then pass consensus national legislation constraining the difference between state laws. Polling suggests that voters have sufficiently varied views that clear majorities are not in favor of either extreme of a total ban without exceptions or abortion for any reason up until birth.
We likely don’t live in such an ideal world, though, and this issue will then fall into probably the most tumultuous state legislative environment in recent memory. In the medium term, cooler heads and those aforementioned political incentives should prevail, with many states likely settling on middle ground positions like the 15-week Mississippi ban at issue in the case, but the short-term chaos will likely be considerable.
To put it another way, we’ve been living in a world where political wrangling over the limits of legal abortion has been mostly frozen in place since 1973, with no one able to actually do anything about it outside of campaigning for presidents to replace justices on the Supreme Court.
Other countries have had a lot more time to work out stable political compromises. In that time, numerous US state legislatures in conservative states have tried to get a head start, drafting “trigger” legislation that will go into effect when the Supreme Court allows it, but they largely haven’t had to implement those bans or face the consequences.
The most likely long-term situation is probably something like Europe, with a patchwork of different laws in different countries and, as expected, considerable travel of wealthier pregnant women from countries with more restrictions to countries with fewer.
Or maybe the Senate will get rid of the legislative filibuster and we’ll oscillate between nationwide abortion bans and the most permissive abortion laws in the world every 4-8 years. With current levels of partisan polarization and the nationalization of politics, you never know!
Buckle in — no matter what happens next, it’s going to be a bumpy ride.
Hi Sam, one quick comment about the politics: I'm pretty sure a national law either way is out of reach for the next few years. The Democrats currently don't have the votes to get rid of the filibuster (Manchin), while the Republicans post-midterms (assuming they win majorities) will be blocked by Biden's veto. That being said, after 2024, that's a possibility.
Gotta admit... If only this were just a game, if only there weren't real consequences, I'd be intrigued how a game of 180 degree turns in abortion laws every 4-8 years would turn out. Unfortunately, this isn't a game.