The End of Roe?

Our Divided States of America

(Photo by Drew Angerer/Getty Images)

Even in an age of hype, it’s hard to overstate the magnitude of last night’s news about a leaked SCOTUS decision overturning both Roe and Casey.

Let’s start with the leak itself.

Yes, the final decision of the original 1973 Roe v. Wade case was leaked hours before it was issued, but as Politico reports, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”

The leak is also a disaster for the court’s image and for its internal operations.

SCOTUSblog @SCOTUSblog

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

The Politico leak was followed by yet another apparent leak of the Court’s deliberations:

Mike Valerio @ValerioCNN

🚨(CNN) — Roberts does NOT want to completely overturn Roe v Wade, meaning he apparently would be dissenting from Alito's draft opinion, likely w the court's 3 liberals, sources tell CNN.   Roberts is willing, however, to uphold MS law banning abortion at 15 weeks, CNN learned.

Why is this happening?

We can’t know for sure, but it appears to be an attempt to influence/pressure the Court before the opinion is finalized. The draft by Justice Samuel Alito was written in February, but we don’t know (1) whether it has since been revised, or (2) whether it still has the support of five justices. It’s worth noting that the vote to overturn Roe was preliminary, and justices have been known to change their minds. Nothing is final until the decision itself is released, and that won’t be for a couple of months.

David French makes the point:

David French @DavidAFrench

1. Cases are not decided until the opinion is issued, so while I want Roe overruled, this draft does not mean the case is over. 2. The leak is inexcusable. We don’t know motive, but Occam’s razor would indicate an effort to pressure the court. Terrible.

Sam Stein @samstein

BIG SCOOP — The Supreme Court has voted to overturn abortion rights, draft opinion shows. "We hold that Roe and Casey must be overruled," Justice Alito writes in an initial majority draft circulated inside the court. https://t.co/EtlZQrLFnK via @alexbward @joshgerstein

Let’s break down the possible fallout:

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The politics

The news about Roe “upends the midterms” and will likely now consume domestic politics for the next few months.

The NYT’s Peter Baker calls it “one of the biggest earthquakes in American domestic politics in a generation.” At the moment, this does not seem like an exaggeration.

Peter Baker @peterbakernyt

@sbg1 @joshgerstein @alexbward This is a draft from February so conceivably it could have changed since then, but if this is the final ruling, it’s certainly one of the biggest earthquakes in American domestic politics in a generation.

Prepare to dust off all of the clichés about the dog who catches the car, because that’s exactly what’s happened here. For years the GOP has campaigned against Roe, but without any realistic expectation that it would actually be overturned. Republicans are keenly aware that polls have consistently shown that while opinion on abortion itself is mixed, a strong majority of voters opposes overturning Roe.

Just 30% of Americans say they'd like to see the Supreme Court completely overturn its Roe vs. Wade decision, with 69% opposed -- a finding that's largely consistent both with other recent polling and with historical trends. In a set of three surveys taken last autumn by different pollsters, support for overturning Roe vs. Wade stood between 20% and 31%, depending on the precise framing of the question. And in CNN's polling dating back to 1989, the share of the public in favor of completely overturning Roe has never risen above 36%.

So short-term, advantage Democrats?

But only if they focus on abortion rights, and not chase the bright shiny object of court-packing.

Also: while most Americans want to keep some abortion legal — the vast majority continue to oppose late-term abortions.

Nota bene: While 63% of voters think abortion should be legal in the first trimester, only 28% support legal abortions in the second trimester — and just 13% support legalized abortion in the third trimester.

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The opinion

You should read it yourself, but the draft opinion is sweeping in its rejection of decades of jurisprudence.

“Roe was egregiously wrong from the start,” Justice Alito’s draft declares. “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.”

Alito’s draft insists: “We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But, despite that, the draft does seem raise questions on a host of other rulings involving “unenumerated rights” such as privacy — and possibly issues like gay marriage. Via Politico:

Alito’s draft argues that rights protected by the Constitution but not explicitly mentioned in it – so-called unenumerated rights – must be strongly rooted in U.S. history and tradition. That form of analysis seems at odds with several of the court’s recent decisions, including many of its rulings backing gay rights.

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Our Divided States of America

The immediate result of the ruling will be to make many abortions illegal in much of the Midwest and South. The decision also means that the abortion wars will now be fought out in every statehouse.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft opinion rules. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Via the Wapo:

But, since all politics is national these days:

Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.

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Let Loose the Dogs of Culture War

What does all this mean? This is what I wrote last December:

In a rational political world, legislators would craft compromises that would reflect the various shades of public opinion.

But, as you may have noticed, we do not live in that world.

Compromise is precisely what we don’t do in our era of hair-on-fire culture wars. Compromises do not feed the outrage machines that shape our debates.

And we know that, don’t we? For the last 50 years, we’ve watched the extremes dictate the terms of the right-to-life debate, just as we’ve seen the absolutists shut down rational and nuanced approaches to gun control. Our debates over everything from masking to race have become more shrill and tribal. Litmus tests overwhelm reason, and rage drowns out prudence.

And now we get to do abortion.

At least in part, [David] French understands the potential risk. In his most recent book he sketches out “a scenario where rage at a Roe reversal created irresistible momentum for court-packing, and state resistance to the packed court fractured the nation.”

We’re already hearing noises about making changes to the court, but court-packing is unlikely to gain much traction outside of the MSNBC green room.

So that leaves the legislative battles at the federal and state levels. And make no mistake about it, there will be fights about pretty much everything involving abortion.

If Roe is overturned, cry havoc, and let loose the dogs of unrestrained culture warfare.

There will be bills to ban abortions after 15 weeks, like Mississippi’s law. Some will include exceptions for rape and incest, many will not. Other states will want to limit abortion to the first six weeks. Some might even try to ban it altogether. In blue states, legislators will codify Roe’s protections, but some will push for sweeping expansions, including late-term abortions.

And the schism between red and blue America will become wider and starker. While red states impose criminal penalties, blue states will expand taxpayer funding. American women will be living in two very different countries.

There will be protests, boycotts, and calls for sweeping federal legislation. Unified GOP control of Congress and the presidency will inevitably lead to calls to federalize Mississippi-like restrictions. In this environment, the extremes will define themselves by their hostility to compromises of any sort.

(I imagine it playing out like this: J.D. Vance comes out for a ban after 6 weeks; Josh Mandel calls for a ban after 2 weeks; MTG declares that all true conservatives support a total ban; and Madison Cawthorn insists that the true pro-life position demands the death penalty for doctors who perform the procedure.)

Every legislative and governor’s race now becomes a referendum on abortion.

Every congressional and senate race will be a referendum on abortion.

The 2024 presidential race will be a referendum on abortion.

In a sane world, this debate could actually be healthier than what we have now. But does anyone think that we live in a world that particularly values sanity?

Instead of lowering the temperature, overturning Roe guarantees that abortion will continue to be the bloody shirt of our politics for decades.

Bonus take: Expect more of this sort of thing:

Dana Nessel @dananessel

Video of my Republican opponent Matt DePerno saying he will prosecute women and their doctors for abortion with NO EXCEPTIONS for rape, incest, or medical emergencies. Women in Michigan should be terrified right now. Vote like your life depends on it. secure.actblue.com/donate/friends…

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Quick Hits

1. Biden Has Two Thirds of a Russia Policy

Shay Khatiri argues that the administration has identified the problem and set an objective. Now they just need a solution.

Maintaining follow-through for its policy after the war in Ukraine is over will test the administration, and Biden in particular. It will be incumbent upon him to ignore those who will implore him once again to deemphasize or even placate Russia and return to the China-only policy. He will have to win support from Congress, including for levels of defense spending far greater than what he has requested so far. He will have to devote more of his presidency than he likely imagined to maintaining the strength and cohesion of NATO. And the administration, in coordination with Congress, must restore the so-called political warfare capabilities to diminish Putin’s support within the government and among the Russian people. Biden’s is a task made easier only by the absence of alternatives—he simply has to do it.

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2. The Two Parties: Rotten Oaks?

In today’s Bulwark, William Galston asks: Is there room for a third-party challenge in 2024?

A rematch between Joe Biden and Donald Trump would bring together in one election, two of the most unpopular candidates in recent memory. And I know for a fact, although I’m not at liberty to name names, that serious elected officials in both political parties are considering this option seriously.

Now, whether it’s a good idea or not is a different question altogether. But there is discontent in the center with a choice between a Trumpified Republican party on the one hand, and a Democratic party that seems to have lost its ability to put the left-wing of the party in its place, rather than yielding to it on a regular basis.

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Cheap Shots

Julia Davis @JuliaDavisNews

This will be all over Russian state TV for weeks to come.

Acyn @Acyn

Tucker: The war in Ukraine is designed to cause regime change in Moscow. They want to topple the Russian government. That would be payback for the 2016 election… https://t.co/eBeqgf263Q