The bombshell dropped on a Monday night. The Supreme Court had voted to overturn Roe v. Wade, the landmark 1973 decision that swept aside all 50 states’ abortion laws and legalized the procedure throughout the country.
A draft opinion written by Justice Samuel Alito leaked to Politico, which published the story on May 2. In it, Alito unashamedly rejected the court’s abortion jurisprudence in both Roe and the 1992 Planned Parenthood v. Casey ruling. “We hold that Roe and Casey must be overruled,” he writes in a document marked as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The substance of the leak and the leak itself, an unusual breach of discretion for the high court, were big stories on their own. Together, they consumed all the oxygen the news cycle had to offer.
People poured into the streets. By that night, up to 1,000 gathered outside the Supreme Court, mostly in protest. Barriers were erected to protect the building, with memories of the Jan. 6 Capitol attack last year still fresh. The assembled were carrying signs with such slogans as “You can’t stop abortion” and “Be pro-abortion, POTUS.”
President Joe Biden did not disappoint the young woman wielding the second placard. "My administration argued strongly before the Court in defense of Roe v. Wade," he said in a statement issued by the White House Tuesday morning. "I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned."
Later, on the tarmac before a trip to a Lockheed Martin facility in Alabama, Biden uttered the word “abortion” for the first time as president. Both his and Vice President Kamala Harris’s statements commemorating Roe the past two years omitted the word. (He had used the term in some written statements, and White House press secretary Jen Psaki says it regularly when the subject comes up at the daily briefings.)
It had become a sore subject among activists. "President Biden claims he supports our rights to abortions. The problem? He refuses to use the word 'abortion,'" said a statement on the group We Testify’s website. Hours after the Roe report, Biden rectified this oversight but emphasized that more than abortion was at stake.
"There are so many fundamental rights that are affected by that, and I'm not prepared to leave that to the whims of the public at the moment," Biden said, referring to precedents on interracial and same-sex marriage or contraception — all of which poll better than abortion. "The idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child, based on a decision by the Supreme Court, I think goes way overboard," he maintained.
Chief Justice John Roberts issued a statement confirming the authenticity of the leaked document, cautioning that there had been no final decision or vote. “Justices circulate draft opinions internally as a routine and essential part of the Court's confidential deliberative work," the court’s press office explained.
"We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law," Roberts wrote. But something had gone awry here, on this contentious issue. Roberts called the leak a “betrayal” designed to "undermine the integrity" of the court. He ordered the marshal of the Supreme Court to investigate.
Roberts, according to the initial Politico report, is the one justice whose vote is undecided. Alito, Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett were in the majority. The liberal bloc of Justice Stephen Breyer, Justice Elena Kagan, and Justice Sonia Sotomayor all opposed reversing Roe and Casey.
Breyer is retiring from the court, and his successor, Judge Ketanji Brown Jackson, has already been confirmed by the Senate. But he is staying on for the remainder of the term, ending roughly in June, and will therefore still be there when Dobbs v. Jackson Women’s Health Organization, the case revisiting these abortion precedents, is ultimately decided. (Jackson made no firm commitments during her confirmation hearings but would be expected to vote the same way as Breyer once seated.)
It is an unusual time in other ways. The midterm elections are this year, and Democrats, who already have the narrowest possible majorities, are in serious trouble. Inflation is ravaging the economy, which contracted slightly in the first quarter. Crime remains out of control in major cities. Russia’s war in Ukraine continues with no end in sight. The southwestern border has been porous throughout Biden’s presidency and, should the lifting of pandemic-era Title 42 migration restrictions be allowed to go forward, could get worse by November. The president’s poll numbers are terrible.
These dire political conditions raise questions about the still-unidentified leaker’s motivations. While the possibility certainly exists as of this writing that a conservative staffer made this unauthorized disclosure, perhaps to prevent any of the currently five anti-Roe justices from defecting, the whiff of desperation about it has most of the speculation centered on the purported losing side.
Democratic operatives cautiously embraced the report as a lifeline, as abortion rights replaced inflation and other concerns on front pages and cable news chyrons. Any anxiety about what a Republican majority or state-level elected officials might do aids the Democrats’ efforts to cast the midterm elections as a binary choice rather than simply a referendum on Biden’s unpopular presidency.
Biden and the White House wasted no time in framing the prospective court decision as an election-year issue. "If the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November," Biden said in his initial statement. "At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law." Translation: Vote for Democrats.
Though a promise to protect federal abortion rights by statute could also set Democrats up for disappointment. The 50-50 Senate has neither the votes to pass such legislation nor eliminate the filibuster to improve the chances of a bill advancing in the future. "I think it's important to note that there has been a vote on this, and it failed," Psaki told reporters aboard Air Force One. "It did not have even 50 votes, which means even if the filibuster were overturned, there would not have been enough votes to get this passed."
Sen. Joe Manchin (D-WV) opposes legal abortion in most cases and would side with Republicans on a vote on the Democrats’ preferred bill. Sen. Bob Casey (D-PA) has also traditionally opposed abortion, but his voting record on the matter has been in flux as the party has moved leftward socially, and his current position on the measure is less clear.
Nevertheless, the parties immediately split on their messaging on Roe’s precarious position. Republicans have mostly focused on the propriety of the leak, whereas Democrats have tried to shine the spotlight on abortion policy. “The integrity and independence of the Supreme Court is once again under attack,” Senate Minority Leader Mitch McConnell (R-KY) told reporters. "Last year, the Democratic leader went over on the steps of the Supreme Court, called a couple of the members out by name, and actually threatened reprisals if they didn't rule the way he chose.”
When asked directly about his role in working with former President Donald Trump to build the Supreme Court’s conservative majority via the Senate confirmation process, McConnell replied, “I think the story today is an effort by someone on the inside to discredit the institution ... which continues a pattern that we've observed over the last couple of years.”
Senate Majority Leader Chuck Schumer (D-NY) described this as evasive. “Every time it was brought up substantively about Roe v. Wade, all he did is talk about the leaks," he said. "Republicans are spending all their focus on the leak because they don't want to focus on Roe v. Wade.”
“They do not want to focus on Roe. I heard that Mitch McConnell was asked if you're proud that you got Roe repealed, and he wouldn't even answer 'yes' or 'no.' They spent a decade — two decades trying to repeal Roe, and now, they won't own up to it," Schumer added. "They're like the dog that caught the bus. They know they're on the wrong side of history.”
The White House has also made this argument, while remaining ambiguous about the appropriateness of leaking a Supreme Court opinion. Psaki said that "many Republicans have wanted to talk about that and not about whether they support the protection of a woman's right to choose, a woman's right to make decisions with her doctor about her healthcare," adding that it's "not a surprise, given by more than a 2-1 margin, Americans want the Supreme Court to support abortion rights."
Schumer, ever eager to avoid a primary challenge from the Left in New York, vowed to bring up doomed legislation to codify the Roe abortion regime. But how much this will benefit Democrats is unclear.
The day following the death of Justice Ruth Bader Ginsburg, a liberal icon, Democrats plowed more than $30 million into the coffers of their campaigns and allied groups through the liberal tech organization ActBlue. In the 23 hours after the Dobbs draft leaked, the total was just $9 million. By Thursday, ActBlue reported the number was up to $12 million.
A rush Politico poll conducted after the outlet published the leaked document found that abortion remained a relatively low priority for voters compared to inflation or the economy. The survey found that economic issues were ranked as most important by a plurality of 41% of registered voters, compared to just 8% who named women’s issues, which includes abortion. The number rose to 18% among Democratic women, suggesting some impact on base enthusiasm, but not much.
The enactment of anti-abortion laws in a variety of red states, including Texas, has not moved the needle for Democrats in national polling. Republicans continued to be favored in most generic congressional ballot polls after GOP-led states passed abortion bans, some of which have become the basis for legal challenges to Roe.
There is also the possibility that the angry protests by activists will backfire. Already, pro-choice demonstrators have congregated outside the homes of conservative justices, including that of Barrett, a mother with young children. Even taller fences were installed outside the Supreme Court later in the week. Any violence could hurt Democrats, as the 2020 rioting eventually did. The racial justice protests were at least initially a less polarizing topic than abortion has been for the last 50 years.
Conservatives have hoped for, and liberals feared, this outcome many times before. The last time Roe was thought to be in serious danger was when the Casey decision was handed down. After 12 years of Republican presidents and no vacancy occurring on the high court during President Jimmy Carter’s term, the only Democratic-appointed justice was Byron White, who dissented in Roe.
Instead, Casey was a 5-4 decision affirming the core holding of Roe. All five votes preserving abortion rights came from justices nominated by Republican presidents, as did three of the four dissents. Justice Anthony Kennedy, President Ronald Reagan’s 1987 nominee after anti-Roe Robert Bork was defeated by a Democratic Senate and Douglas Ginsburg was withdrawn, wrote the opinion.
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote in a much-mocked passage of a decision that dismayed conservatives. But Casey did expand the ability of states to regulate abortion, leading to a number of popular restrictions being passed throughout the 1990s and gains in acceptance of the pro-life label in public opinion polls.
Many court watchers thought a Casey-like erosion of Roe that left the basic abortion holding intact was a likely outcome of Dobbs. It may still be. But if Alito’s leaked opinion remains the majority position of the court, this ruling will go further than that. Either way, until the ruling is announced, this leaked draft remains the lens through which activists and politicians will be looking.
W. James Antle III is the Washington Examiner's politics editor.