As all are aware, on May 2 Politico published a February draft U.S. Supreme Court decision, apparently having the support of five conservative Supreme Court Justices, which would overrule previous Court rulings, the most famous being Roe v. Wade, that have opined that women have a constitutional right to abortion during certain stages within a pregnancy. On May 3, Chief Justice John Roberts issued a statement that confirmed the draft’s authenticity but indicated that it did not constitute a final and definitive ruling by the Court.
While there is talk both that the leaker is liberal, seeking by the leak to galvanize public opinion against the decision, and that the leaker is conservative, seeking by the leak to solidify any potentially wavering conservative Justice(s), such is obviously pure speculation. The leaker must recognize that it is almost inevitable that his/her identity will ultimately become known. While not a compromise of a classified document, this was a breach of such a sacrosanct confidentiality obligation within the Court that the leaker, if a lawyer, must have felt that the act was worth risking his/her career. (Of course, if the leaker is conservative, s/he may have a more profitable future as a Fox News pundit.)
I have previously noted in these pages that notwithstanding my legal background, I have no knowledge of the relative merits of the legal Constitutional arguments surrounding abortion rights beyond that of any layperson who tries to stay informed regarding public affairs. I have also noted that while I am personally opposed to abortion, I consider that belief to be literally a matter of faith. I understand that my Roman Catholic creed is not shared by all faiths, nor by many Americans who do not have any religious belief, nor by a significant segment of the scientific community. I accordingly support a woman’s right to abortion because we are not supposed to be running a theocracy here; it is not mine to impose my religious beliefs on another where there is a rational basis for dispute. It is up to the Almighty to ultimately judge, not me. [I have plenty enough to worry about how He (please excuse the male pronoun for a spirit without gender) will judge my transgressions.]
That said, and in addition to the direct effect on women’s abortion rights, several potential consequences seem to me likely to result from the Politico report and/or from any Supreme Court decision with the effect of that in the Politico report.
The first is terribly corrosive but not original. Any outright reversal of Roe and its progeny will eviscerate any vestige of confidence remaining in our citizenry that the Court decides cases on the law and precedent and not on personal political philosophy and preference. If a member of the Court, even if I felt that Roe and its progeny were truly wrongly decided, I would, given the potential impact on the Court’s credibility, find it difficult to overturn them outright. (That said, the balancing of such considerations necessarily retains a significant element of subjectivity; the Court was obviously both legally and morally correct to overturn Plessy v. Ferguson, the 1896 precedent that had upheld the constitutionality of racial segregation under the “separate but equal” doctrine.)
The second is tragically negative. The hyper-partisan paroxysm that will now grip our polity for the foreseeable future will undoubtedly distract us from all other issues – most notably, our support for Ukraine’s ongoing fight for freedom. Virtually all I’ve seen anybody talk about since the Politico story broke is The Draft and The Leak. Overnight, they’ve seemingly done what neither Russian President Vladimir Putin nor vaccines could do – eradicate Ukraine and COVID. I fear that the political conflagration surrounding abortion will taint what has been, up to now, a generally amicable and bipartisan support of American’s assistance to Ukraine. Citizens of democracies cannot afford that.
The third is purely surmise. While the draft fosters the notion that states are free to deal with abortion rights differently, its author, Justice Samuel Alito, also declared, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives [Emphasis Added].” I had this thought before I saw it mentioned, so feel free to add it here: it doesn’t take much prescience to suggest that if Republicans gain control of both houses of Congress this fall – more on this below — they will immediately abandon their professed allegiance to states’ rights and seek to construct and pass a federal law banning abortion nationwide. For 2023 and 2024, our federal regime will resemble what we Wisconsinites have had throughout WI Gov. Tony Evers’ term: a Democratic executive (President Joe Biden) needing to regularly veto Republican partisan pandering legislative spasms. It is not hard to envision what might occur if Republicans control both Congress and the White House.
The last is perhaps counterintuitive. I would preliminarily venture that the Politico publication has shifted the emotional goal posts for the Court’s upcoming abortion decision. Until the Politico report, a Supreme Court ruling upholding Mississippi’s ban on abortions after 15 weeks was viewed as a likely incremental win by conservatives and a lamentable defeat by liberals, but given the Court’s conservative complexion, such a result was – to borrow a phrase frequently used to describe Wall Street’s assessments of the effects of the Federal Reserve Board’s prospective interest rate moves on stock market valuations – already “baked into” the parties’ November electoral prospects. I ventured in these pages in January that if the Supreme Court declared that there was no Constitutional right to abortion: most or all states with Republican governors and legislatures would outlaw abortion within their jurisdictions, either de jure or de facto; and that such a decision would provoke such liberal and progressive backlash and generate sufficient unease among Independents and Republican moderates that Democrats, despite all historical trends and the way 2022 political winds have appeared to be blowing, would retain their majorities in Congress. In reading that post now, I think I may have been a little strong; the House of Representatives may now be so populated by gerrymandered Republicans that even the most frenetic Democratic reaction may well not be enough to stave off a GOP takeover of the House. However, although I’ve heard analysts express doubt about this contention, I continue to believe that if the Supreme Court overrules Roe during this term, the inevitable state-by-state aftermath will so arouse liberals and progressives and disturb Independents that swing state Democratic Senatorial and Gubernatorial candidates will largely prevail. Taking an example from close to (my) home: I would submit that in Wisconsin, such a decision will ironically hurt Republican Senator Ron Johnson’s re-election prospects and aid Mr. Evers’. On the other hand, if conservatives, now anticipating total victory in the abortion dispute, end up with what they perceive as only half a loaf – i.e., the Supreme Court upholds a woman’s Constitutional right to abort for some specified period of time – they will be infuriated and liberals, relieved; but such reactions will help Republicans at the polls in November.
“… I offer the Krauthammer Conjecture: In sports, the pleasure of winning is less than the pain of losing. … For every moment of triumph, there is an unequal and opposite feeling of despair.”
- Charles Krauthammer, The Washington Post, June 30, 2017
If Mr. Krauthammer were still alive – and I unfortunately only came to appreciate his sagacity after reading The Point of It All, a compilation of his columns published after he had passed away – I’m pretty sure that he would agree that it is not inapt for me to apply the Krauthammer Conjecture to our political maelstrom, which has, regrettably, degenerated into another sports maxim he quoted in his column, well known to us in the land of St. Vincent Lombardi: “Winning isn’t everything. It’s the only thing.”