Andy Hogue handled this last night when the news broke, so I’ll not go too deep into it. But the leak of Justice Samuel Alito’s draft majority opinion in the Dobbs case, whereby it appears it’s finally happened that Roe v. Wade has been overturned by the Supreme Court, is some very big news deserving of more than one Hayride post. I anticipate that Jeff Crouere and Royal Alexander will both be along within the next couple of days to opine on the subject, and Jeff Sadow is likely to go through the Louisiana implications in the next couple of days.
The bigger story isn’t the prospect of Roe going away. That’s been inevitable since Amy Coney Barrett was confirmed on the Court, giving it five truly conservative justices even without the irritating John Roberts counted in the majority. Roberts apparently was not in favor of overturning Roe, though he is willing to uphold the Mississippi statue imposing a 15-week age limit on abortions. That’s a nonsensical, political position perfectly in line with the tepid writings of Anthony Kennedy, and it’s more evidence of just how weak and compromised Roberts is as the Chief Justice.
No, the bigger story here is the leak itself.
Never in the history of the U.S. Supreme Court has a decision been leaked before it was final. That this one was, and as Joe Cunningham said at RedState and we cited in today’s Quote of the Day, it had to be one of the leftist justices’ clerks who leaked it, is a terrible development perfectly in line with what government and politics have become.
GOP consultant Matt Wolking probably has it correct as to the culprit here…
A person called Amit Jain clerks for Supreme Court Justice Sonia Sotomayor.
As a Yale student, Jain blasted Yale for supporting Brett Kavanaugh's nomination.
Jain was quoted in a 2017 Politico piece by Josh Gerstein.
Today, Gerstein published the draft SCOTUS opinion on Roe.
— Matt Wolking (@MattWolking) May 3, 2022
Everything about that checks out. Entitled Ivy League millennial, connection to the reporter who published the leak, clerks for Sotomayor, who’s the most political justice on the court (even more so than Roberts, as his politics are about protecting the institution whereas hers are partisan), and a clear intention of destroying what trust and comity is left on the Court as punishment for the majority having a different opinion.
That’s absolutely the modern Left to a T. Zero limits, zero rules. They’ll do whatever they can to get what they want. So leaking the draft opinion with an eye toward causing unrest and therefore attempting to intimidate one of the conservative justices into switching positions and thus upholding Roe is a perfectly foreseeable action in this case.
It should be understood that the pro-life side has done everything by the book. They’ve passed laws through the legislative process in order to challenge Roe v. Wade, they’ve engaged in advocacy inside and outside of politics, they’ve invested a great deal of money into crisis pregnancy centers to convince unexpected mothers to carry children to term, they’ve worked to educate the public on the emotional and moral costs of abortion, and they’ve appointed judges through the regular process who could break down the undemocratic and shaky legal regime built around Roe.
It’s been the pro-abortion Left which has broken the rules. They’re the ones who trashed the filibuster for judicial appointments, and that opened the door for Neil Gorsuch, Brett Kavanaugh and Barrett to go onto the Court and make a majority for upending Roe. That their bad faith and tactical mistakes are coming back to bite them would lead to some law clerk trashing two and a half centuries of tradition only continues the pattern.
And for what?
Roe v. Wade going away won’t make abortion illegal in America. Not by a long shot. What it’ll mean is that Minnesota, Massachusetts and California will have very permissive laws on abortion, while Texas, Louisiana and South Carolina will ban it altogether.
That’s the way the country was founded. Let the states make their own policies.
Now – some pro-life states will try to pass laws making it illegal for their citizens to go elsewhere to have an abortion. That’ll be messy, and ultimately I’ll say it won’t work. I can certainly understand the moral imperative many in the pro-life movement feel to stamp out abortion everywhere – if you believe it’s murder, of course you’ll want to put an end to it. Politically, though, that’s likely going to be a bridge too far.
And you’ll have the usual virtue-signaling and cancel culture on the Left. California will refuse travel by state employees to pro-life states, for example, and you’ll have New York banks trying to punish red states by refusing to finance bonds anywhere abortion is banned, and so forth.
These things are unpleasant, but honestly even that is better than what we currently have, which is something significant majorities in red states believe is a manifest evil being imposed on them by Washington, DC through a poorly-reasoned Supreme Court decision. When the political process is allowed to work on an issue like this, you ultimately will get to some consensus that holds because most people get tired of fighting. In the case of abortion it’s a wound which can’t heal because the decision has been taken out of the hands of the people.
And what will ultimately come from the abortion issue returning to the people’s hands is that real solutions – not even political ones – will emerge.
Medical science can now keep alive fetuses as young as 22 weeks, though it’s very difficult to do so. With a real need to change the game, and with American parents increasingly desperate to adopt children, you’ll now see a great emphasis on finding ways to save the children of unwanted pregnancies and making it more doable to incubate younger and younger fetuses outside of the womb.
And when it becomes within our technological power to safely incubate a fetus of, say, 16 weeks, there will be no more argument for abortion. If the mother finds the child inconvenient for whatever reason, she undergoes a procedure to transfer the fetus into the care of a medical facility which then incubates until the adoptive parents can safety take him or her home.
Is that a perfect solution? No. Is it a whole lot better than killing millions of Americans in the name of sex as entertainment? Why yes, it is.
You’ll never get the kind of emphasis for fast medical advance in creating that proposed new reality when the federal government enforces abortion on demand. But if Roe goes away, now both sides of the abortion debate have an investment in getting us there. If the Left truly believes in “reproductive health” but a majority of states oppose allowing that to include killing children, then they’ll need to find a way to provide services to their clients within the constrictions of the new laws. And the Right is pro-life, which is satisfied by, essentially, an in vitro adoption regime to replace abortions.
With the added benefit of an increased birth rate in America, which the country needs.
The pro-abortion crowd is busy losing their minds, but Roe going away is a good thing and it moves us closer to a resolution of the issue. What isn’t resolved is the refusal to abide by the norms and standards of political and judicial conduct that leak represents.