On Monday evening, Americans were stunned to learn that a first draft of the majority opinion in the Supreme Court case Dobbs v. Jackson Women’s Health Organization had been leaked to the public via Politico. The news was stunning for two reasons: first, because such a leak is entirely unprecedented. The Court strenuously protects its ability to deliberate apart from public pressure, and this is the first time the public has seen a draft decision, all the more striking since the final decision hasn’t been finalized or released yet.
But the news was no less stunning for the content of the decision itself. As written (and again, it’s only a first draft), the decision, delivered by Justice Samuel Alito, says that not even the Supreme Court’s respect for its own prior rulings could justice “unending adherence to Roe’s abuse of judicial authority. Roe [v. Wade] 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 [Planned Parenthood of Southeastern Pa. v.] Casey have enflamed debate and deepened division.” In no uncertain terms, the (draft) majority opinion finally declares Roe and Casey overruled.
So what does all of this mean for the pro-life movement?
In one sense, nothing. The Supreme Court quickly responded to the leak by acknowledging that the document was “authentic,” but that “it does not represent a decision by the Court or the final position of any member on the issues in the case.” That’s important to bear in mind in making sense of just what the document is. It’s simply a first draft that Justice Alito proposed for his colleagues. They might love it, or hate it, or have a whole series of changes that they would like to see made before they’re comfortable signing on to it. We simply don’t know. The justices still have time to change their minds, since nothing is finalized yet. The decision is only binding once it’s formally released.
Nevertheless, there’s a great deal to be hopeful for, because the draft decision is a masterpiece. Justice Alito points out that “no Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly.” Instead, there are several factors to consider in whether or not to overturn a previous ruling. In this case, the Court (again, if the draft stands) found that “five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”
In other words, the Court doesn’t overturn a prior case just because that prior case was wrong. That may sound counterintuitive, but it’s based on a legal principle (called stare decisis, which means “to stand by things decided”) in which courts try to make sure that present and future decisions are consistent with past decisions. It’s somewhat like parenting: once you set a boundary, you don’t want to change that boundary willy-nilly, because it makes things uncertain and chaotic for the house. The same is true here: people need to be able to have a basic expectation of what their legal duties are, what their constitutional rights are, etc., and if the Court behaves erratically, that’s all put into jeopardy.
So even when a Supreme Court ruling gets it wrong, subsequent Supreme Court justices will often defer to it, particularly if the error is harmless, or if the earlier Court made a strong legal argument for its position, or if the ruling was at least clear and “workable” in guiding lower courts, or if it’s simply been taken for granted and relied upon by lower courts (and citizens). But in this case, despite the attempts of the controlling opinion in Casey to try to convince everyone to give up on the fight against abortion by calling upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” pro-lifers have never accepted that there is such a thing as a constitutional right to abortion. As Justice Alito points out, that’s partly because the Court in Roe seemed unsure (and not even particularly interested) about where in the Constitution to find such a right. In the case of Roe (and Casey), the Supreme Court’s error has been deadly to perhaps millions of unborn children, and it’s divided the country more than perhaps any other Court decision in the last 100 years.
Roe and Casey are precisely the types of bad Court decisions that get overturned – even pro-choice activists will rarely argue that either case was well-decided (appealing instead simply to stare decisis). And it appears that they might, at long last, be repudiated. If that is the case, the battle for the pro-life movement won’t be over, it will just be beginning. As The Daily Beast reported last year, “abortion rights groups are outraising and outspending anti-abortion groups dramatically.” Pro-choicers got complacent, thinking that their side was untouchable because they had the heavy hand of the law backing them up. This decision will likely ensure that they don’t make that same mistake again. Neither can we.
Post Dobbs, the battle will largely (thankfully) shift away from the Court and towards state and federal legislatures. But if we’re to be successful in the long haul, it must always be centered in love and concern for our neighbors, in changing hearts and minds rather than simply relying upon the heavy hand of the law.