Sorting Through the Dobbs Leak

Now that the dust is starting to settle on the Supreme Court leak, it’s easier to see the major positions, players, and developments. It’s not an exaggeration to say this will be the most significant Supreme Court decision of the last generation, and the culmination of decades of work in the conservative legal movement.

The fact that a draft majority opinion leaked out of the court is as astonishing as it is impactful on the process of deliberation. As Jonathan Turley and Gerry Baker discussed on the Wall Street Journal’s “Free Expression” podcast, a leak like this has the potential to change the court forever. It feels like a seal has been broken. News and documents leaked out of the Trump administration daily as a result of the internecine conflict in the government agencies, but the court has been a holdout. What makes the situation worse, Turley added, is that the Chief Justice turned to the SC’s own police force rather than the FBI. Either they know who leaked the opinion or they’re going to have a very hard time figuring it out.

Many have speculated as to who might have the motive to leak the draft. Someone on the conservative side may have wanted to solidify the majority if one of the justices was wavering. Someone more progressive may have seen this as a moment of no return, leaking the draft to incite public pressure. The WSJ editorial board wondered if the draft was aimed to aid the Chief Justice’s effort to pull one of the five justices who initially voted to overturn Roe into a more moderate opinion to uphold Dobbs but also uphold Roe. Ross Douthat sees a liberal leaker as more likely for these reasons; the leak was not reported to the WSJ, but to Politico, the progressive left favors activist tactics and pressure campaigns like the leak, and the leak makes more sense coming from progressives who believe it is time for desperate measures.

One of the most astounding aspects of the leak coverage is the amount of misunderstanding (willful or ignorant) going around about Roe. Here are a few clarifications to sort through the fog of (culture) war:

First, overturning Roe will not outlaw abortion in the U.S. Overturning Roe simply returns the decisions to the states. Currently, there are 26 states whose legislatures have abortion restrictions that will go into effect if Roe is overturned. George Will has written one of the best summaries of Alito’s draft opinion and outlines four points in his reasoning: (1) Roe overturned all state laws by moving debates about abortion to the federal level. (2) Abortion is not a right found in the constitution nor is its protection a part of American history and law. (3) “Stare decisis” is a principle and a test for the court, not a binding rule. (4) In fact, some of the court’s finest moments have been overturning bad precedents.

Here’s one difference that distinguishes the conservative and progressive legal visions. By overturning Roe, what conservatives want to do is return the power of making laws about abortion to the states. This was the case before Roe and should be again. There is no guaranteed right to abortion in the constitution, therefore, unless a law is passed in Congress, this matter is reserved for the states. The majority in Roe found a right to abortion in the Constitution, and instead of deferring to Congress interpreted the law to include abortion protection. This is the same thing that happened in the Obergefell decision in 2015. The court made it illegal to make same-sex marriage illegal because Justice Kennedy found the right of every person to “define and express their identity” in the Constitution. These are starkly different approaches to legal interpretation and to the process of legislation.

Will gets things exactly right on the consequences of Roe being overturned: “Soon, 7,383 state legislators might be relevant, perhaps uncomfortably so, to this great question that until 1973 was the business of state legislatures. Suppose the court says that Mississippi’s law is not unconstitutional because the court was mistaken in declaring a constitutional right to abortion. Then 50 state legislatures will reacquire the traditional right to set policy regarding the legal status of prenatal life.”

Overturning Roe may have less to do with the morality of abortion and more to do with Roe’s egregious reasoning. Last year in Public Discourse, Phillip Williamson detailed the declining support of Roe’s reasoning even among progressive legal theorists. His point is important to grasp; even many progressives understand that abortion protections are going to need a different and more substantial rationale than is found in Roe, particularly after Casey gutted Roe’s core logic.

Second, not all abortion supporters support Roe. Akhil Reed Amar is a law professor at Yale and personally supports abortion protections, but makes the case that Roe should be overturned. He points out that the Supreme Court overrules a previous ruling about twice a year. Amar agrees with the reasoning of Alito’s opinion that the court invented to right to abortion in the 14th Amendment.

In support of Alito’s argument, Amar concludes; “In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.”

Third, rape and incest cases make up less than 1.5% of abortions. The Guttmacher Institute, an overtly progressive organization, furnishes some of the best statistics on abortion in the U.S. They report that 24% of women have had an abortion by age 45. The most common reason for abortion (74%) is that “having a baby will dramatically change my life.” When asked to rank the most important reason for abortion, the top answer was “not ready for a(nother) child/timing is wrong.” Cases that threaten the life of the mother make up only 6%.

These statistics simultaneously clarify the points that the vast majority of abortions are not life-threatening or rape/incest cases and many women do not have the support they need to have a(nother) child. Part of this is the access to abortion. Another part is the constant need for intact families, healthcare, community support, and abstinence when couples do not want to have a child.

Additionally, one line of argument is that laws limiting abortion after a certain amount of time (which is what Roe originally allowed) will significantly curtail women’s rights resulting in “forced births” – which must be one of the most calloused and misleading sound bites in American discourse. But the Guttmacher Institute reports that 88% of abortions happen before 12 weeks; 65% occur before 8 weeks. The Dobbs case before the court only limits abortion after 15 weeks, this only affects 5% of abortions.

Fourth, Democrats in Congress voted to extend abortion rights to the moment of birth. Despite the fact that laws like Dobbs affect 5% of abortions or less, the Senate voted on an abortion bill that would have extended abortion rights all the way up to the moment of birth. Under the guise of enshrining Roe in federal law, Senate Majority Leader Chuck Schumer brought the “Women’s Health Protection Act” to the floor of the Senate for a vote.

This bill passed the House in 2021 but stalled in the Senate. The purpose of the bill is “To protect a person’s ability to determine whether to continue or end a pregnancy and to protect a health care provider’s ability to provide abortion services.”

The WHPA denied cloture is a shorter version of a longer bill passed in the House which aims to “permit health care providers to provide abortion services without limitations or requirements that… do not significantly advance reproductive health or the safety of abortion services and make abortion services more difficult to access.” This allows for no restriction on abortion. The summary reads, “This bill prohibits governmental restrictions on the provision of, and access to, abortion services.”

Senator Murkowski, who is pro-abortion, said, “I have long supported a woman’s right to choose… but my position is not without limits, and this partisan Women’s Health Protection Act simply goes too far.” Sens. Manchin and Collins agreed and the bill failed 49-51. It would have needed a majority of 60 to pass. With the exception of Manchin, every single Democrat voted for this bill.

Schumer’s actions may have been fortuitous for conservatives. Senators Murkowski and Collins have drafted a bill that would actually encode Roe into law. It’s doubtful that they would have reached 60 votes, but they would have had a bipartisan majority in support. Instead, Schumer pushed the WHPA which met bipartisan opposition.

Fifth, Evangelicals, Catholics, and other Christian groups have always opposed abortion. There’s a narrative floating around that Christians just recently started opposing abortion after the rise of the “Religious Right” in the 1970s. Actually, one of the earliest documents after the New Testament was written, The Didache, prohibits abortion and calls Christians to combat infanticide – as widespread then as abortion is now. In the Washington Post, Gillian Frank and Neil J. Young detail the history of Christian opposition to abortion. It has been a consistent and essential part of Christian social teaching for two thousand years.

Sixth, pro-life means anti-abortion. There are arguments going around the Evangelical world that go like this: being pro-life means supporting gun restrictions. If Christians were really pro-life, they would care about the life of the mother. If pro-lifers really cared about life, they would fund free childcare and family leave.

I’m sure many pro-lifers do agree with these other measures, but many do not. Regardless, the arguments are completely beside the point. This logic of saying, if you want to do this you must also do that is like saying to an ER doc, well if you’re really pro-life you’d fix the patient’s cholesterol as the patient is dying from a gunshot wound. It’s possible to do both, if we were to agree on whatever other problem is being invoked, but it’s foolish to argue for some ethereal pro-life maximalism when the issue at hand is abortion.

In reality, it’s not pro-life people making this argument. It’s a tactic to shame pro-lifers into inaction. Consider the statistics; in 2019 the CDC reported 630,000 abortions. There have been over 63,000,000 abortions since the Roe v. Wade ruling in 1973. To put this number in perspective, there were 21,000 gun deaths in 2021. 467,433 people died from Covid in 2021. Over 575,000 more babies have been aborted in the United States than people have died from Covid since the beginning of 2020. The scale of abortions in our country is almost unfathomable. Being pro-life, for whatever else you might believe, starts with opposing abortion.

Dr. Cole Feix is the founder and president of So We Speak and the Senior Pastor of Carlton Landing Community Church in Oklahoma.