Conservatives Are All Trying to Find the Guy Who Leaked This

In their fervent efforts to get rid of the constitutional right to an abortion, conservatives have long argued that Roe v. Wade was, as Justice Samuel Alito wrote in his leaked draft decision, “egregiously wrong from the start.” I spoke with senior correspondent Irin Carmon about Roe’s unsteady legal foundations and whether conservatives have merely used them as an excuse to gut abortion rights.

Benjamin Hart: The idea that Roe v. Wade was a bad Supreme Court decision — legally, not morally — is hardly an opinion limited to conservatives. Indeed, Samuel Alito, in his fire-breathing draft opinion to overturn the decision, quoted some prominent liberals over the years, including Ruth Bader Ginsburg and Laurence Tribe, who have argued that the reasoning in the 1973 decision, which focused on a woman’s right to privacy, was unpersuasive. And they’re far from alone. In 1992’s Planned Parenthood v. Casey, which reaffirmed Roe(but with additional restrictions), a Supreme Court majority helped sharpen the legal argument. Still, abortion has never been a straightforwardly constitutional matter. How much does that actually matter here, in your view? Clearly the conservative justices on the Court are ideological enemies of abortion, but to what extent has the legal gray area made their jobs easier in heavily restricting it?

Irin Carmon: I think we have to separate out the opinions of law professors — of which Ginsburg was one for many years — and other legal practitioners from how Roe actually has functioned in the world. Ginsburg had a case that was to be argued in the same term as Roe v. Wade. She represented a military servicewoman whom the Air Force was forcing to choose between quitting her job or having an abortion when she wanted to give birth. (Weirdly, abortion was legal on military bases at the time, even compulsory, while illegal in most of the country.) Ginsburg argued that the state forcing a pregnancy decision violated the equal protection clause of the 14th Amendment, which she’d already used to convince the justices to make gender discrimination illegal.

Her case was mooted when the military changed its policy; the justices who wrote Roe didn’t accept the equal protection arguments that were made in an amicus brief, and [Harry] Blackmun stuck to both a right to privacy and, rhetorically, a doctor’s right to practice his profession, which Ginsburg hated. She also thought an incremental approach would have worked better.

Where I think she and all the liberal law professors who have criticized Roe are wrong is that the vast majority of people don’t know or care about the doctrinal basis of Roe. And I’m not persuaded it would have ensured more political settlement had abortion rights come about another way.

Most people have no idea what Roe says. And whether they’ve read it or not, they have their own opinions about abortion that have nothing to do with where it’s situated in the Constitution, but rather who they think should decide who stays pregnant.

Ben: Yes, that’s what I’m wondering. Conservatives have argued for decades, in essence — “this should have been a matter for elections and legislatures, not courts, to decide all along.” Okay, so would this really have been a settled issue if Congress had passed a nationwide law guaranteeing a right to abortion in 1973, instead of the Supreme Court weighing in? It doesn’t seem exceedingly likely.

Irin: Linda Greenhouse and Reva Siegel have a historically based rebuttal to the Roe backlash argument that points out that immediately after the decision, it wasn’t controversial — after all, Republican appointees wrote it and abortion wasn’t a partisan issue. There were anti-abortion Democrats, mainly Catholics, and pro-choice moderate Republicans. But they argue that Patrick Buchanan convinced Nixon that this could be a win if he successfully polarized parties around it, by uniting Evangelicals and Catholics. He was right.

I’m sure it helped to warn of the same black-robed tyrants who had handed down Brown v. Board of Education, but if they’d written the opinion differently, I’m not sure anyone would know or care.

Ben: So it wasn’t like people immediately saw the flaw in the legal reasoning and were outraged. That all happened later.

Irin: That’s exactly their argument, and I think the evidence is persuasive.

Ben: Alito wrote that Roe is different from other contentious decisions that guaranteed Americans rights because abortion is not “deeply rooted” in American traditions. (It was fully illegal in most states back in the 18th century, when conservative justices claim to believe the country’s jurisprudence was frozen in amber.) But determining what fits the category of “deeply rooted” seems no less arbitrary than finding new rights in the Constitution that weren’t explicitly written down. I don’t suppose any anti-abortion people will care about this kind of inconsistency, though.

Irin: Well, as even Alito acknowledges, those abortion bans were passed in the mid-19th century and before that, abortion was allowed in the common law before “quickening” (fetal movement). It’s true that abortion doesn’t pass a test that Alito, and whoever signed onto his opinion, created for the sole purpose of narrowing rights like reproductive freedom. That’s not the only possible mode of constitutional interpretation, but it does happen to be one that accomplishes the political and ideological goals of the Republican Party almost every time.

Ben: Let’s say that, against the odds, Democrats win another trifecta of the presidency, Senate, and House in the near future, but this time they’re able to abolish the filibuster and pass a nationwide abortion law. How do you think a Supreme Court lineup similar to the one we have now would approach something like that?

Irin: Against the odds is sadly correct! I honestly don’t know. Legal scholars have debated whether the commerce clause would limit any national legislation. Alito’s draft opinion says abortion should be left to the democratic process, but he is oddly vague on whether that should be limited to state legislatures or whether there can be a congressional solution. The move on the furthest reaches of the right is to get the fetus classified as a person under the 14th Amendment. It’s unclear whether anyone on the Court wants to even reach that question.