The Supreme Court Opinion Leak That Could Give Way To A River Of Fear — Or Compassion In Difference
The U.S. Supreme Court building. Unsplash photo
(ANALYSIS) On Tuesday, a preliminary draft Supreme Court opinion was leaked to Politico, revealing that the court — as of February — intended to overturn Roe v. Wade. The leaked opinion was in the case of Dobbs v. Jackson Women’s Health Organization, which challenges a 2018 Mississippi law banning termination at 15 weeks of pregnancy.
The opinion, authored by Supreme Court Justice Samuel Alito, concludes:
Abortion presents a profound moral question. The Constitution does not prohibit the Citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule these decisions and return that authority to the people and their elected representatives.
President Biden speaks out
President Joe Biden commented — not without controversy — on Tuesday of the magnitude of the leaked initial draft:
It concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose. … But even more equally as profound is the rationale used. And it would mean that every other decision relating to the notion of privacy is thrown into question.
Beyond this initial statement calling into question how the leaked draft decision could impact the privacy rights cemented through Roe — which formed the basis for the Supreme Court’s decision legalizing same-sex marriage, among others — Biden also stated:
Roe says what all basic mainstream religions have historically concluded — that the right — that the existence of a human life and being is a question. Is it at the moment of conception? Is it six months? Is it six weeks? Is it — is it quickening, like Aquinas argued? I mean, so the idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court, I think, goes way overboard.
These comments garnered a critical response from many religious groups, including those of Biden’s own faith. Catholic News Agency stated in an article, “The Catholic Church teaches (abortion) is a grave evil that destroys a human person with inherent dignity and worth.”
The article also quoted the catechism of the Catholic Church, refuting Biden’s statement that all mainstream religions have held when life begins as an open question: “From the first moment of his existence, a human being must be recognized as having the rights of a person — among which is the inviolable right of every innocent being to life.”
Faith and public voices respond
How are other religious, spiritual and public voices responding? This situation, both the complexity of the leak and the substance of the initial draft decision, deserve treatment with care. Let’s remember we reside in a system that rewards fear-mongering, gawking at others’ missteps and framing issues as zero-sum games.
More than that, this leak poses an invitation for us — and particularly for people of good faith — to consider with empathy and humanity all involved. Consider the deep fear and separation that drives those on all sides of the chasm to quake and tremble at the edge of the precipice and grope the ledge to keep from falling in. Note, I said all sides of the chasm. What if the chasm was not a boundary that separated us, but a circle? A circle that we, from our own individual vantage points, could only see as a dividing line?
Below are only a few voices offering deeply empathetic responses, rooted neither in wishy-washiness nor moral looseness but the sincerity of deeply held spiritual convictions — decidedly not all the same — to protect and seek the sacred commons.
Walter Kim, president of the National Association of Evangelicals, wrote in statement:
Evangelical commitment to protecting the unborn stems from our deep understanding that God created human beings in his image and that every human life from conception to death has inestimable worth. If the Dobbs decision remains unchanged, we will celebrate that citizens will have greater opportunity to engage in creating policies that impact women and children. We also recognize that after this decision, vulnerable women and children will need a lot of support. Churches should be ready to help.
Justin Giboney, founder of the AND Campaign, tweeted:
Democrats went from “safe, legal and rare” to enacting some of the most extreme abortion laws in the world. They’ve been reckless. However, if the conservative position is actually rooted in compassion, they’ll act on healthcare, paid family leave and childcare post-Roe.
Sheila Katz from the National Council of Jewish Women released a helpful, though one-sided, reminder:
Spoiler alert: Jews have abortions. Catholics have abortions. Muslims have abortions. People of faith and people of no faith have abortions.
Susannah Black, a journalist at Plough and Mere Orthodoxy, tweeted:
I already have a couple of contacts in this area but looking for more: who knows of any pro-choice folks working for expanded federal social safety net OR mothers and families welfare stuff on a state or private level who would be open to collaborating with pro-lifers? DMs open!
The questions to come
The leak also raises foundational questions for actors on all sides. How did this leak happen? How ought the source of the leak, if eventually revealed, be punished? What dysfunctions within the court made the leak not only possible but also what some clearly see as justifiable? Will this leak change the way the Supreme Court collaborates in the drafting process? What changes in the court overall will the leak fundamentally beget?
And yet, beyond these important yet temporal and tactical questions, larger questions loom — questions that, for many of us, feel both primordial and personal. That is why stories like this draw us in like a kaleidoscope we can turn and turn — not fully sure of what we are seeing but in awe of the beauty of patterned chaos we know all too well.
What does this leak mean for the future of the court? What does the leak bring to light about deep-seated fractures in the trust of anchor institutions of American democracy? And what does this leak reveal about the congenital fear and separation polarizing not only our trust in institutions but in each other?
It is important to note the fluidity and unpredictability of the collaboration, drafting and deliberation process that ultimately produces a final Supreme Court decision. It is possible — and sometimes a reality, as various versions of draft opinions are dispersed among the court — that justices adjust their positions on cases. Negotiations, vote-trading and alliances can change initial votes up until mere weeks or days before a final decision is made public.
This is particularly true in cases like Roe, and now Dobbs. The word controversial does not fully capture the essence of this case. Landmark? Epoch? A case of a generation?
The last voice — centralizing those on the margins
Still, as we are discussing the strategic, philosophical and political gamesmanship needed to address the complexity and nuance of this situation, let’s not forsake the people it directly impacts. Let’s not forget the flesh and blood — yes, blood — of the sacred lives of women and babies.
I must admit, when I read this decision, I shuddered involuntarily. I, an otherwise healthy, privileged White woman almost lost my life last summer when I birthed my daughter almost three months early. I believe all life is sacred, including nascent life. For those of us who believe in sacred human dignity at all stages of life, let’s not forget to hold in prayer and in good will the women less fortunate than I, for whom this leak was not merely an opportunity to engage in political tactics but a tangible, involuntary shudder of vicissitudes of life and death itself.
Chelsea Langston Bombino is a believer in sacred communities, a wife and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.