The Leaked Supreme Court Document

KEVIN HARRIS: Well, the Supreme Court has voted to strike down the landmark Roe v. Wade decision according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the Court but then leaked. The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protection of abortion rights and a subsequent 1992 decision, Planned Parenthood vs. Casey, that largely maintained the right. Roe was “egregiously wrong from the start,” Alito writes. There have been times I thought that Roe v. Wade would never be overturned, but according to this leaked opinion from the Supreme Court it looks like this is about to happen.

DR. CRAIG: One can only hope that that is the case. From what I've heard, five of the justices at least are in support of Alito's opinion and, as you said, it repudiates the legal reasoning behind Roe v. Wade as well as the Casey vs. Planned Parenthood decision. So it looks as though this could be returned to the states to decide and that this Supreme Court decision (Roe v. Wade) will be overturned. Like you, I was hopeless that this might ever happen. I remember back in the 1980s pundits saying, “Why don't these pro-life people just give it up? This is never going to be overturned. All of these efforts are in vain. It's a futile effort to try to do this.” And yet the pro-life cause never gave up. They stayed in the trenches. And now it appears that victory for them may be on the horizon. It really is a breathtaking development. I have to say, as well, this is the legacy of Donald Trump's presidency. Three of the five justices were appointed by Trump that are apparently ready and willing to overturn Roe v. Wade. So this shows the enduring impact of that man's presidency. Now, as I think about this leak, it seems to me that there are three independent issues that need to be talked about. One would be the leak itself. Second would be the constitutionality of Roe v. Wade. And then the third would be the ethics of abortion on demand. I think it's important that we keep these distinct because whether or not you're in favor of abortion on demand, that's quite independent of whether or not the Roe decision was good legal reasoning. Was it good constitutional law? Yet many people, because they are so pro-abortion on demand, automatically think that therefore Roe was good constitutional law. And that simply doesn't follow.

KEVIN HARRIS: That leaked opinion is 98 pages long so there's just no way we're going to be able to cover all that. It's a pretty hefty reading. We're also going to talk a little bit more about the danger of Court documents being leaked. But first, let's get you to comment on a couple of the excerpts from the Court opinion. Here are two right here.

For the first 185 years after the adoption of the Constitu­tion, each State was permitted to address this issue in ac­cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.

Then secondly,

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.

DR. CRAIG: What the decision did was it interrupted the political process and took the decision away from the people and imposed abortion on demand on the nation as a whole. As Alito says here, it invents this right to abortion on demand and reads it into the Constitution which I think we can confidently say was never envisioned or implied by the original framers of the Constitution. So the Roe decision is very widely recognized to be just bad constitutional law. Even if you're in favor of abortion on demand you ought to recognize that this is not something that is guaranteed in the United States Constitution.

KEVIN HARRIS: Here are two more excerpts.

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).

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 a crime at all stages of pregnancy.

DR. CRAIG: Can you imagine – 75% of the states made abortion a crime at any time during pregnancy. So clearly this right is not deeply rooted in the nation's history and tradition and therefore cannot be inferred to be implicit in the Constitution even if it's not explicit.

KEVIN HARRIS: Listen to this excerpt.

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 “un­born human being.”

DR. CRAIG: Oh, boy. What is in a description. Roe v. Wade described the unborn baby as “fetal life” but the law before the Court now talks about unborn human beings. He's quite right. This sets it apart. We are talking about the right to destroy human life without any overriding moral justification for doing so. Roe v. Wade legitimizes abortion on demand at any stage of pregnancy for any reason and is therefore, I think, profoundly evil which is to speak to the ethical question but Alito's point here is that this is very different from other constitutional cases.

KEVIN HARRIS: This may be the most strongly worded excerpt.

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.

DR. CRAIG: These are such powerful words, aren't they? So the overturning of Roe v. Wade does not outlaw abortion. What it does is it returns the issue to the people and to the states. And if this is done, undoubtedly there will be a wide variety of state laws governing the regulation of abortion.

KEVIN HARRIS: Just a couple more excerpts real quick. This one says,

Row, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.

DR. CRAIG: So you've got one right that is not mentioned, and that unmentioned right is supposed to imply another right also unmentioned. And all of this is just the fabrication of this activist Court in 1973.

KEVIN HARRIS: This excerpt,

On occasion, when the Court has ignored the “[a]ppropriate limits” imposed by “respect for teachings of history,” … it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York . . . and the [Court] must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.

DR. CRAIG: Yes. Exactly. And, again, what Alito is saying is that the Court in the past has notoriously, infamously, made some very bad decisions, and then those decisions have been overturned. So, in a sense, it is following precedent in overturning here an egregiously weak decision that was rendered.

KEVIN HARRIS: You mentioned this earlier but I'll give you a couple of quotes here from an article in “First Things” that says that the leak is very dangerous.^[1] It says,

. . . a potentially shattering event, both because of the leaker’s probable motives and the leak’s probable effects. Most likely, the leaker set out to intimidate one or more of the justices and affect the outcome of the case. Alternatively, the leaker hoped to destroy the Court as an institution—in the approving phrase of one progressive commentator, to “burn this place down.” The long-term consequences of the leak may be severe.

. . .

After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer. That is what makes this leak so damaging, however one feels about the ultimate issue at stake.

DR. CRAIG: Now this is that first question I alluded to. Whatever you think, again, about the Roe v. Wade decision or its ethics, these kinds of leaks are intolerable. It wasn't just some notes from Justice Alito that were leaked. This is an entire Supreme Court opinion on a case, an opinion that will be either agreed to or dissented from by the other justices. And this thing has been leaked to the public prior to its final vote. It's absolutely essential that these kinds of things be done privately on the Court so that there can be a freewheeling exchange of ideas among the justices as they debate these issues and see if they can agree with the opinion or dissent from it. It is disastrous for the working of the Court for this kind of material to be leaked. Whoever did this needs to be prosecuted to the full extent of the law. If one of the other justices did this then I think that justice should be impeached because this is intolerable. If it was a law clerk who did it then that clerk needs to be found out and needs to be fully prosecuted. And I say that regardless of your view of whether or not the decision to overturn Roe v. Wade is justified. These kinds of leaks cannot be permitted. I think it is scandalous that the current administration has not said anything to date to protest this violation of this most sacred of our judicial institutions – the Supreme Court.

KEVIN HARRIS: As we wrap it up today, I wonder what you think. I know it calls for a little speculation. If Roe v. Wade is overturned in the upcoming decision, what do you think the effects will be on society? What will it mean for our country? Maybe I could ask it this way – what do you hope that it would do?

DR. CRAIG: Well, my hope is that it would save thousands and thousands of lives. That women contemplating having an abortion will choose instead adoption or to have the baby after all and work things out. That would be my hope – is that this will be a truly life-saving measure. But you know what? I predict that after the initial kerfuffle and the heat of this thing dies down, that people will just learn to live with it. I think that in a year's time it won't be all that big a deal because people have an amazing ability to simply adapt to whatever the Supreme Court decides. That's been the pattern in the past. So women living in states that prohibit abortion will probably try to go out of state if they can to get an abortion, and the liberal states like New York and California will continue to have their liberal abortion on demand laws. So I doubt that there will be a tremendous change, but it does mean that the pro-life movement will now move to the state level. It means that we’ve got to care a lot more about not just who is our federal representative or senator but who is it that we are electing to our state legislature? Because these will now be the men and women that are deciding on the legality of abortion on demand in our own personal states.

KEVIN HARRIS: We’ll be watching this case and updating. Thank you, Bill.^[2]