Monday’s disgraceful leak of the draft Supreme Court opinion tossing Roe v. Wade made big headlines, but the likely decision is no real surprise to anyone who’s been paying attention.
The leaker likely hoped to somehow influence the final decision, but the positions of at least five justices seem rock-solid. And the truth is that Justice Harry Blackmun’s reasoning in the Roe opinion was always problematic, as no less than liberal icon Ruth Bader Ginsburg noted.
The only reason it’s held up this long is that the high court doesn’t turn on a dime; it takes a lot for it to toss its own precedents. (The 1992 split decision in Planned Parenthood v. Casey upheld Roe, but barely: Four justices wanted to overrule, while two wanted it fully upheld; the three in the middle wound up replacing Blackmun’s rationale with a different one and allowing more state-level restrictions.)
Soon, the expected ruling will leave abortion law up to the states. New York and others (holding a majority of the US population) have already written massive abortion protections into their laws.
Many others will allow at least first trimester abortions, which is when over 90% of procedures are actually done. (That’s also where the line’s drawn in most democratic nations.)
Yes, 13 states have “trigger laws” that will ban virtually all abortions once Roe is voided — but public opinion in many of those areas had already made an abortionist damn hard to find, and some may re-examine their legislation once it’s more than symbolic.
Don’t expect Congress to impose any national standard: The nation’s far too divided on this question for either party (each of which still has dissenters on abortion) to gather enough votes to overrule all the states — especially with the Senate filibuster intact, despite progressives’ recent efforts to kill it.
In short, the Supremes tossing Roe (and Casey) will only make abortion law the subject of normal politics, so that anyone looking to change it will first have to convince a solid majority of their fellow citizens. And that will require a lot more than dirty tricks like handing confidential documents to your buddies in the media.
