Sorting Through the Leaked Roe Draft

Somebody violated protocol and leaked an early draft of a U.S. Supreme Court decision that would overturn Roe v. Wade. This has sent people off, as you might expect it would, but let’s try to sort through it as rationally as we can.

The first thing to observe is that the leak itself was a very bad thing. It’s yet another example of the violation of norms in American political culture. We don’t know who did it. Maybe a law clerk. It could have been someone who is pro-choice trying to rally Congress to enshrine Roe in law before it’s too late or it might be a conservative trying to head off a compromise that would keep Roe intact.

House Republican Leader Kevin McCarthy blasted the leak which suggests that it might have come from an abortion rights supporter. But the other possibility makes a little more sense. There’s simply no way that Sen. Joe Manchin is going to end the filibuster now so that Roe can be preserved. Not representing West Virginia, he’s not. Maybe Republican Sen. Susan Collins, who is pro-choice, might do that, but it seems unlikely. She has never been one to stick her neck out that far.

On the other hand, it is very plausible that Chief Justice John Roberts has been trying to pick off one more conservative to join him in a decision that would wind up affirming the Mississippi law severely restricting abortion without going so far as to overturn Roe. That would be consistent with the questions he asked at the oral arguments and his general approach to the Court. So, the motivation might be to put pressure on the court’s five conservatives to stick with the initial draft.

Justice Samual Alito has written a draft opinion overturning Roe, but we won’t know if it stuck for another month.

Regardless of who did this and why they did it, it’s too early to tell what effect it will have on the court. Will it push them toward preserving Roe or overturning it or has the die already been cast? It’s anybody’s guess.

In any event, it makes a great deal of difference whether Mississippi’s restrictions are simply upheld (almost a certainty) or Roe is overturned. The former option would be bad enough, but overturning Roe could reinstate Wisconsin’s 1848 law banning abortions overnight. And with Republicans in firm control of the Legislature there’s no way that that law will be repealed anytime soon.

The politics of all this need some sorting out. The Democrats are looking at a slaughter in the fall and they’re losing on every major issue that has been on voters’ agendas up until now: inflation, crime, education, immigration, COVID. A Roe reversal would almost surely move abortion to the top of the list and it’s the one issue on which Democrats have an advantage. About 70% of Americans do not want to see Roe gutted. In other words, the last thing Democrats should want from a policy perspective is the only thing that could save their House and Senate majorities.

The argument would be that if they could maintain their House majority and add a seat or two in the Senate, they could eliminate the filibuster and restore a right to abortion legislatively even without Manchin. This argument could turn out dispirited progressive voters and flip some suburbanites. This would be a huge boon to whichever Democrat gets the nod to take on Sen. Ron Johnson in November. All of those candidates were quick to send out statements and emails this morning saying how hard they will fight for abortion rights. At least two flew to DC last night to stand on the steps of the Supreme Court.

But, in a counterintuitive way, overturning Roe outright would be less advantageous to Gov. Tony Evers than a Roberts-brokered deal that stops short of that. That’s because a full reversal of Roe would probably reinstate the 1848 ban and there would be nothing Evers could do about it. Whereas, if the court simply upholds the Mississippi law, Evers’ argument will be that he is the only thing standing between Wisconsin women and some harsh restrictions.

One last observation. No matter what the Court decides, this won’t end abortion in America. In states with liberal governments — which are some of the most populous states — abortion will remain legal. In other states women will have to travel to get the procedure. And, in some cases, the practice may return to the dangerous shadows. All of this as the number of abortions has been falling for years. As a question of public health, either upholding the Mississippi restrictions or overturning Roe altogether makes no sense. As a question of law, it may go the other way. And as a question of politics, it’s likely to favor the Democrats.

Conservatives should be careful about what they’ve wished and prayed for all these years.

And on a related matter… it seemed risky and probably ill-advised for Tom Nelson to attack Sarah Godlewski on this issue today. The headline on his press release reads, Nelson for Wisconsin Requests Sarah Godlewski Acknowledge Responsibility for Supreme Court Catastrophe. Really? Sarah Godlewski is responsible for all this? Nelson’s point is that Godlewski didn’t vote in 2016 when she was Hillary Clinton’s women’s director in Wisconsin. Trump won by a narrow 22,000 votes and not voting was a serious faux pas for Godlewski, but Nelson pretty much jumped the shark on this one. Why attack the only woman in the race on a day like this? And why go after Godlewski, who after spending a million dollars on TV ads is still only 2% points ahead of him? Nelson has to defeat Mandela Barnes and Alex Lasry. If he does that, he’ll leave Godlewski behind as well, but there’s no need to go after her.

Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

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