What If Roe Is Not Dead Yet?

By Bill Scher for RealClearPolitics

The May 2 leak to Politico of Supreme Court Justice Samuel Alito’s “1st Draft” of “the opinion of the Court,” in the case involving Mississippi’s ban on abortions after 15 weeks of pregnancy, strongly suggests the end of Roe v. Wade is nigh.

But the respected Supreme Court reporter Tom Goldstein of SCOTUSBlog offered an alternate interpretation of recent events.

Goldstein noted there was, apparently, a prior leak to the Wall Street Journal editorial board. In an April 26 piece, the board wrote there is a “ferocious lobbying campaign” afoot, targeting “Justices [Amy Coney] Barrett and Brett Kavanaugh,” and added that Chief Justice John Roberts “may be trying to turn” one of them and join a more narrow decision, denying Alito a majority of five.

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The WSJ editorial is coyly written. As Goldstein observed, “While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.”

Goldstein further highlights that Politico only got Alito’s first draft, which was circulated in February, even though “a subsequent draft … ordinarily would have circulated to the court by now.” That raises some questions. Has the court actually finished its deliberations? If not, which faction stands to gain from these leaks?

The WSJ leak suggests that those who want Roe overturned were worried one or two conservative justices might buckle. The Politico leak could be retaliation from someone in the liberal camp, hoping to pressure Kavanaugh and Barrett by whipping up public sentiment, or an additional leak from the conservative camp, warning Kavanaugh and Barrett that if they side with Roberts, they will be smoked out as flippers.

Goldstein views the leak to Politico as potentially two separate leaks, one describing what had occurred so far in the Supreme Court’s deliberations, and one of the draft opinion itself.

He suggests that the WSJ leak and the Politico leak regarding deliberations benefited conservatives, as an attempt to lock in the initial votes, while the leak of the opinion serves the interest of liberals, as it “brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote.”

The totality of the leaks leads Goldstein to speculate that “Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.”

How might the Roberts opinion differ from Alito’s?

During the oral arguments, the U.S. Solicitor General, in defense of current Supreme Court precedent, noted the Mississippi’s legal team was not arguing for “a clear 15-week line” but a broader rollback of abortion rights that would allow states to pursue even stricter bans. Roberts retorted, “Well, that may be what they’re asking for, but the thing that is at issue before us today is 15 weeks.”

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That comment suggests Roberts would prefer a narrow opinion that only adjudicated the Mississippi law, presumably to uphold the 15-week ban, without flatly overturning Roe. Still, doing so would require throwing out the central holding from Roe and the subsequent Planned Parenthood v. Casey, described in the latter as, “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” (According to Michael Gazzaniga’s “The Ethical Brain,” “at around week 23 the fetus can survive outside the womb, with medical support.”)

At oral argument, Roberts seemed to undermine the “viability” standard. “As far as viability goes,” he said, “I don’t see what that has to do with the question of choice at all.” Left hanging in the air from this comment is a fundamental question: If the standard is removed, what of Roe would remain? What would be used instead?

Roberts has threaded the constitutional needle before, most famously with his opinion in the 2012 case that upheld the Affordable Care Act. Liberals generally find wide congressional powers in the Constitution, rooted in clauses that grant Congress the authority “To regulate Commerce … among the several States” and “To make all Laws which shall be necessary and proper[.]”

To them, upholding Barack Obama’s signature health care law was a straightforward proposition. But Roberts explicitly rejected validating the program based on those clauses.

The court in 2012 had five Republican appointees, so Roberts by himself could deny conservatives a victory. Now with six such justices, Roberts needs a conservative buddy to pull off the same trick. The leaks on their own don’t tell us if Roberts has already failed or if he’s still in the game. Yet they have certainly escalated the expectation that Roe is doomed, and that could scramble the politics of the final ruling.

A Roberts-authored (or Roberts-sanctioned) controlling opinion that removes the central pillar of Roe, the “viability” standard, could either set a new standard that explicitly allows for some stricter state-level abortion bans (but perhaps nullify others which have been passed recently), or leave states without clear guidelines and effectively encourage them to continue testing the boundaries.

Instead of celebrating a major rollback of Roe, Republicans may wail in dismay and turn on each other, for it will have been two or three of their own appointments who derailed the Alito opinion. Abortion rights activists may still be unnerved at Roe’s weakening, while also feeling that they have they dodged a bullet.

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Yet a Roberts-led ruling would – substantively – be a huge victory for abortion opponents and huge defeat for abortion supporters. Roe wouldn’t be overturned, but it would be reduced to a shell of what it once was.

Moreover, Roberts will have done so while also showing that the court’s far right septuagenarians – Alito and Clarence Thomas – haven’t wrested control from him, thereby dulling attacks from the left regarding the court’s legitimacy.

Of course, this is all highly speculative. Alito may well still have the upper hand, if not already having denied Roberts any chance of winning. But whether you are an abortion supporter or an abortion opponent, it’s not so clear who exactly you should be rooting for.

Syndicated with permission from Real Clear Wire.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at [email protected] or follow him on Twitter @BillScher.

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