Paul Fabrizio: Battle over abortion will continue in wake of Supreme Court leak

The leak of the draft of U.S. Supreme Court Justice Samuel Alito’s opinion last week has created much controversy.

The release of information from the Supreme Court is rare. They tend to stick to their published opinions and seldom share other news. The deliberate leak of a first draft of a decision involving the most important and politically charged case is a whole other matter. Simply put, the court does not like to divulge how it does its job. That makes this leak so interesting yet troubling.

Leak is disturbing

The court operates by allowing justices to first express their thoughts in initial draft decisions that are sent for review to the other justices.

Through subsequent drafts, those thoughts get refined and buffed down by the other justices to form an opinion that has the widest possible number of justices supporting it.

By leaking a draft, someone who works at the court is circumventing that process. This could have a chilling effect on the court’s ability to achieve consensus on an issue.

Look at the recent decision on Boston and flying a Christian flag.

In a 9-0 decision, the court allowed Boston to fly that flag in a public space. It was crafted by retiring Justice Stephen Breyer in such a way as to get the maximum possible judicial support. That took time and many circulated drafts of the opinion. Each of the justices took their red pen to the first draft that Breyer wrote, and probably the second and third drafts, too.

In the end, he was able to fashion a decision that the whole court could support.

Now, with the threat of a public disclosure of a leaked draft hanging over the heads of the justices as they work through decisions, the possibility of justices thinking freely and working out issues on a case in private is preempted.

Think back to when you were in school. If you thought your first draft of a paper was going to be graded, you would write it differently than if you knew that it was just a first attempt. You most likely want to revise that first effort to make it a better paper. What was released yesterday was a first draft written in February.

I doubt any of the justices thought it was ready for the public’s eye.

Decision was a surprise

The draft decision was a total overthrow of Roe v. Wade and Casey v. Planned Parenthood, the two seminal decisions that firmly locked the right to an abortion into the U.S. Constitution. From the oral arguments on the abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization in December, the clear preference for the majority of the justices was obvious.

They did not like Roe and wanted it gone. So this draft decision made obvious what was seen in the court’s chambers late last year.

But it was a surprise in that rather than try get the vote of Chief Justice John Roberts who seemed to want to modify but not overthrow Roe, this decision simply had the five most conservative justices say that Roe is gone. This draft contained no attempt to broaden the majority from five to six justices. It was simply written as a power play by those five justices to say that they are the majority and their decision stands.

This is where the leak is so concerning. It is possible that some of those five justices might have been willing to negotiate with Roberts. They might have had an issue with the unyielding tone of this draft decision. It is possible that those justices, in the second or third draft, might have changed the tone or focus of this first draft and tried to include Roberts.

It also is possible that the conservative justices might have wanted to toughen the Alito language and further isolate Roberts from themselves. We just do not know.

The question now in the face of all this scrutiny in the public over this draft decision, can any justice feel free to negotiate? Can any justice feel free enough to change the tone or words of this decision? I bet that the publicity the court is getting now makes it harder to change things.

Dream decision for pro-life community

Ever since the original decision was announced in 1973, there has been fervent work to achieve what Justice Alito wrote in his decision. We will not know what will be the final decision until later this spring, but for right now, the pro-life community should be pretty happy with the possibility.

At the same time this decision, if it stands, will simply turn back abortion law to what it was 49 years ago. Each state would be able to set up its own laws about abortion. Therefore some states will be pro-choice, some pro-life. Here in Texas, the Roe V. Wade decision simply stopped the enforcement of our anti-abortion laws that have been in place for decades. Those laws are still on the books and so they can be enforced again if this draft opinion becomes the final decision.

Pro-choice advocates will work to make the right to an abortion part of federal law but right now there is not enough votes for that to happen. Pro-life advocates will work for a potential Human Life Amendment to the U.S. Constitution to make sure abortion never happens again in this country. They do not have the votes to make that happen.

The fight over abortion in this country will continue. It will be played out differently than in the past as it moves more fully into the state and local political arenas. The draft that came out late Monday is simply one more step in a battle that has consumed this country for almost a half-century.

Dr. Paul Fabrizio is a political science professor at McMurry University

This article originally appeared on Abilene Reporter-News: Battle over abortion will continue in wake of Supreme Court leak