Why Even Pro-Choicers Should Condemn the SCOTUS Leak and Support Overturning Roe v. Wade

Quite the title, huh? Well let me make my case below.

I was studying for my comprehensive exam when a bombshell report was dropped by Politico: The news site got its hands on a draft of a Supreme Court decision where a majority voted to overturn Roe v. Wade, the 1973 case that concluded that a right to abortion was protected under the Constitution. The document is authentic, as later confirmed by Chief Justice Roberts, and it has led to all sorts of meltdowns and explosive takes.

I’d like to jot down here how I’ve processed the leak, and perhaps it can be helpful to others, particularly other Christians, in how they process it as well. I want to be clear from the start though: What follows is more of a political/legal analysis rather than a moral one because it is entirely possible to be critical of Roe v. Wade despite being pro-choice and it is also possible to be pro-life morally but believe that a right to abortion is important.

The Leak Itself is Dishonorable and Should be Condemned by Everyone

If the leak was done purposely, then there are two leading theories coming from opposite sides of the political spectrum:

1. Someone associated with one of the liberal justices leaked the document in an effort to publicly shame and pressure the majority into a different decision. This was the obvious one that crossed most people’s minds, though it is also pretty plausible that…
2. Someone associated with one of the conservative justices leaked the document in an effort to prevent any of the majority from changing their minds. The thinking is that, since they would not want it to look like they caved to protests, the leak would cause them to double-down on overturning Roe.

Whatever turns out to be true, this much is clear for anyone with a shred of wisdom: Whoever leaked it needs to be punished. Criminally if necessary, and at the very least, if that person has a law degree, that person needs to be disbarred. If a justice was knowingly involved, that justice needs to be removed from SCOTUS. That goes for a liberal or conservative justice. It is atrocious behavior that lacks integrity, and assuming it wasn’t an accident, it’s a clear attempt to manipulate how justices rule on cases. SCOTUS is not perfect and never will be, but whether we disagree with their decisions or not, opening the door for this kind of manipulation is bad for everyone long-term.

Anyone who is celebrating the leak is a fool and should be ignored. It’s the worst kind of partisanship to celebrate results one prefers without any consideration of process.

Might Want to Hold Off on the Celebrations or Gnashing of Teeth

Just a reminder, this is a draft, and it does not necessarily reflect what the final decision will be. It’s just a snapshot of the debate process between the judges. I know telling people to chill out is going to fall on deaf ears, but people should probably avoid having meltdowns or parties based upon something we’re not even sure is going to happen.

People Need Actually to Read Roe v Wade and This Draft

It is quite astonishing how little the average American knows about what Roe v. Wade actually did, and this has led to many absurd reactions which are acting like overturning that case will automatically make all abortions illegal across the country. What Roe did was argue that the Constitution, under a right to privacy, protected a right to an abortion, at least up to the third trimester. This decision struck down many state laws restricting abortion across the country. What overturning it does is simply return the matter to the states and possibly Congress, where I think it should have been the last 50 years anyway.

Roe v Wade was a Bad Decision That Should be Overturned

As I said, most people have not bothered to see what Roe v Wade actually did or what arguments the majority employed. It may surprise many to learn that there are even some pro-choice lawyers and legal scholars who will quietly admit that the decision was a horrible one according to constitutional law, reading into the text something that just wasn’t there. For space considerations I won’t get into all the details, but basically, borrowing language from a previous case, the majority argued that the right to an abortion came from “emanations” from the “penumbras” of the Constitution. I talked to a pro-choice, left-leaning lawyer and he claimed that he knows of no reasonable lawyer who doesn’t think Roe v Wade was poorly argued. While I am sure there are still many outside of his circles who will go to bat for the decision, I think it is safe to say that that the majority in that case had to do a bit of reaching to get a result it wanted.

So that brings us to the doctrine of stare decisis or precedent. How strong is that doctrine when it comes to overturning cases that we think used flawed legal reasoning? This is a good question; after all, there may be cases that weren’t perfectly argued but whose results were widely accepted and have become embedded in American life so much that it would be deeply impractical and unpopular to overturn them. For example, there is a small minority of originalists who argue that Brown v. Board of Education was wrongly argued. This, however, is purely an academic discussion; nobody seriously wants to go back and reinstitute segregation (well, given the alt-right and woke Left these days, maybe there are a few…). Granted, there are far more lawyers who will argue that Brown v. Board of Education was correct legal reasoning than for Roe, but the illustration suffices to show that it’s a bad idea to go against precedent willy-nilly even if it is granted that the justices’ argument was not air-tight. Precedent is an important injection of humility to the legal process and provides a measure of stability for our expectations about the law.

However, stare decisis does not mean that precedent can never be overturned as Brown v. Board of Education itself illustrates, being a repudiation of Plessy v. Ferguson. Most justices reject the idea of a “super precedent” that could never be challenged, justices as ideologically diverse as Amy Coney Barrett and the recently confirmed Ketanji Brown Jackson. So what makes Roe materially different than Brown? I’d say this:

-As noted above, the legal reasoning of Roe is far more disputed. It is commonly considered poor by lawyers even from pro-choice camps.
–Roe v Wade enjoys far less support and has brought about bitter division and debate in this country over the last five decades, which is why even the late liberal justice Ruth Bader Ginsburg criticized the decision as judicial fiat. While most Americans from polling do not want Roe overturned (a recent poll found ~54% in favor of keeping Roe), that is far less than cases like Brown. On top of that, I’d argue that if many Americans understood what overturning Roe meant, which is returning the decision to the states, that number would get far smaller because many people would shrug their shoulders and say, “Oh, that’s it?” This is why it’s very disingenuous (and malicious) for lefty politicians to claim that pro-lifers are now going to go after interracial marriage, as if interracial marriage isn’t common among conservatives. That’s literally not a thing, and there hasn’t been five decades of bitter debate about the validity of interracial marriage.
–Brown was itself a correction of a bad decision in the past. This is what overturning Roe would be. Some pro-choicers are engaging in a bit of gaslighting here, accusing the court of judicial activism when this decision, if rendered, would be reversing an act of judicial activism when the Supreme Court clearly overstepped its bounds. That’d be like if you tackled someone who tried to attack your family and people instead accused you of being the violent one.

I’ve said this before many times: Wise people value good process over a singular “good” result in their eyes because not only does good process bring about good results more consistently, bad process can easily be turned against you. This is why I argue that even wise pro-choicers should support this decision (“should” being the operative word, since I am not naive enough to think most will): Roe v. Wade was bad process, and overturning it does not necessarily end abortions. The decision now goes back to the people rather than five justices who made a bad argument.

That also goes for some conservatives, by the way. Several of them are unhappy with this decision purely because the Democrats were not looking so hot for the midterms, and so those conservatives are very worried that this decision will galvanize a disenchanted Democrat base. That’s entirely possible, but what should matter is if the decision is right, not that Preferred Politician X wins an election this fall.

For Pro-Life Christians, Overturning Roe is not the End-All, Be-All

My support for overturning Roe v. Wade has more to do with my dislike for bad reasoning and bad process, but many Christians support it for the simple reason that they want to protect the unborn. I’m with them there to a degree, but Christians should not make political “wins” their primary goal and should appreciate how complicated people’s situations may be that are hard to account for by any singular law. Let’s say one of the conservative justices changes his mind and Roe stays. What changes? Not a whole lot; Christians can and should do what we can to convince people that purely elective abortions are immoral and provide resources to help people make better decisions. It’s one thing to tell a financially struggling single mom that killing her own unborn child is wrong; she might even agree with you but feels like she has no other choice. It’s another actually to provide some aid and care for her so that the decision to spare her child becomes an easier one.

Conclusion

Tl;dr: If the leak was purposeful, it needs to be punished because that’s a bad way to go about things. Roe v. Wade should be overturned because it was bad legal reasoning and a prime example of an overreaching Court. And the leak should not cause the kind of meltdowns it is from pro-choicers because not only is the decision not final, it itself is not a ban on abortions but is properly returning the decision to legislatures.