WTH: Roe v Wade: The Leak, the Law
And a civil discussion about abortion
Three takeaways — plus a bonus:
The leak of the un-negotiated, unvarnished first draft of the decision in the Dobbs case long after it was written is an attempt to persuade fence-sitters. It won’t work.
Sending abortion-related law-making back to the states may not be universally popular, but there’s a good legal argument to do so.
Congress can’t overturn the court, it can only mitigate. But the Democrats don’t have the votes to do that right now.
This isn’t a simple matter, and it deserves civil debate and discourse. We tried that on the pod, and we need more of it in real life.
On the pod with John Yoo, we cover everything from the leak to the Roe decision itself, Congressional recourse, the question of what Americans really think (because polling indicates most Americans are far more ambivalent than the political debate might suggest) and the need for civility noted above. But there’s another question to tease out as well… the question of the courts.
Over time, the Supreme Court has taken on an almost oracular, quasi-biblical role as the great decider. Envisioned by the early justices as an arbiter of constitutionality, political divisions and overzealous litigiousness have rendered the court the decider of all. John writes nicely about it in this piece. That’s part of the reason (setting aside the 14th amendment and the expansion of government, thank you Gary Schmitt) battles over Court nominations have become so acrimonious — because if the states aren’t going to do it (whatever *it* is) and the legislature isn’t going to do it, many issues end up in the court’s lap. Gay marriage? Yep. Affirmative action? Uh huh. Discrimination in college admissions? That too. And it seems… reasonable to ask whether Americans really want this sort of government. A topic for another day.
At the end of the day, we don’t offer complete solutions to the challenge at hand, only, we hope, a better understanding of the issues. In all the political and emotional posturing, there’s very little clarity about the facts and the law. Hopefully, our conversation was a worthwhile contribution; don’t hesitate to let us know.
HIGHLIGHTS
We’re trying a slightly more organized highlights section. Compliments and complaints welcome…
THE LEAK:
Yoo: By December 3rd, Friday, the nine justices knew initially how this case was going to come out. They talk together and then they vote. And then the Chief Justice if he's in the majority, assigns the opinion, or if the Chief Justice is not in the majority, then the senior justice left gets to assign the opinion.
WHY ALITO?
Yoo: And so that's significant, because the fact that Alito drafted the leak document shows that Roberts was not in the majority. Because almost without a doubt, I think Roberts would have kept it for himself.
THE TIMING?
Yoo: Now the reason why the timing of the leak is so significant, I think, is because the beginning of May, this is around when all that haggling starts to come to an end. You know by early May how the votes are going to come down, and that's when the other justices start to circulate their dissents, concurrences. I think the reason it's leaked, because whoever had this draft must have had it since around the beginning of February, hasn't given us any of the other drafts that came after it, that I've been saying reflect the haggling and bargaining. Because they think they want to provoke a response against the majority opinion. And so they're showing us, in a way, the most robust, extreme, aggressive version of the opinion before it gets watered down through negotiation. And since last week, I'd say the votes are probably locked in on the court. No one's going to switch sides now. And so whoever leaked this might have hoped, oh, maybe Roberts could pull someone away from the majority.
WHO LEAKED IT? L OR R?
Yoo: I think the theories that it was someone on the right is just people on the left engaging in the most ridiculous wishful thinking, or are such utterly malicious disinformation that Mary Poppins might come down from on high and censor their speech. And I've seen this from the inside, right? If you have that five justice majority, you don't want to change anything, or you don't want anybody to get cold feet. Leaking a draft like this, all it would create for you would be uncertainty.
THE ACTUAL OPINION:
Yoo: The leak itself has taken over all the attention that it distracts us from the opinion itself. And so, people can be different sides on abortion as a policy matter. I mean, I'm pro-choice as a policy matter. As a voter in California, where I'm going to have a chance to vote on it soon, I assume. The problem with Roe is that it took that kind of decision away from the voters. Roe imposes a constitutional right, or extracts a constitutional right to abortion from a text that doesn't mention abortion.
[Alito’s] main argument, and the problem with Roe, was that the states control most life or death decisions in country. They control the criminal laws, the death penalty, euthanasia, you could go on and on. They control the laws about the family. All these important decisions in the hands of the states. So why is abortion singled out and taken away from them?
Roe did not base its holding on a law that burdens women unfairly or even unconstitutionally. Almost as if a Roe thought the right of abortion was shared between the doctor and the patient. The better argument a lot of liberal law professors say, is that Roe should not have been based in this... The phrase is a due process clause of the Constitution, which doesn't even sound like it's about rights. The due process clause says the state can't take away your life, liberty, or property without due process. Well, that also implies that it can take away your life, liberty, or property if it just does it in the right way. Instead, what law professors think is, the better decision would've been under what we call the equal protection clause, which means that government can't make irrational, unfair, pretextual distinctions between groups of people and treat them differently.
A BETTER ROE?
Yoo: It would've been much better for the majority of Roe, or even the Court in Casey in 1992, where three Republican justices, Souter, O'Connor, and Kennedy, joined together to keep Roe alive. They didn't change the basis of it either. They had the chance, but I think they felt they wanted to... This goes to this other argument. I think it has died out now, but used to be the main argument for Roe, more of a "Let's just respect precedent. Let's just not tamper and overthrow the past. We've had abortion rights now protected by the courts for 50 years almost now, so why mess with it?"
I remember when we talked about the oral argument back in December, the interesting thing is that liberals on the Court, very smart people, were not defending Roe on the merits. They weren't even claiming Roe really is in the Constitution. All they were arguing was, "Just respect the past. Roe was decided in the '70s. Our society is organized around a constitutional right to abortion, so let's not change anything. Let's not disrupt anything anymore." But as you point out, Dany, that avoids the question whether Roe made sense.
CAN CONGRESS “FIX” THIS?
Yoo: There's a lot of things Congress can do. One of them, as you said, is making it easier for people to leave states where abortion rights are limited, say, Mississippi itself or Texas, which has passed an even more restrictive law, or there's some states which have these trigger laws, which will try to ban abortion almost entirely if the Court reverses Roe. The federal government could give money directly to people who want to travel out of state for abortion. In fact, I think my home state of California here right now is considering a law that will fund people coming out of state, at California taxpayers' expense, to come here and have an abortion.
This would be much more controversial. Congress could require hospitals and other medical care facilities that receive federal funding, again, this would have to be Congress, receive federal funding, if they want to receive Medicare, Medicaid funds, they would have to provide abortion under some kind of framework. Recall how controversial it was whether Obamacare would include contraceptives
What the federal government can't do is coerce states to change their own laws. The federal government can't directly command Texas to say, "Texas, you must provide the right for an abortion." Congress this week is voting on a bill that basically does that, and that's a futile effort, because that's clearly unconstitutional. As I tell my liberal friends, if Congress can go out and mandate a federal right to abortion and preempt state law, then Congress could also pass a law saying, "We ban a right to abortion," and preempt California and New York's laws.
Well, politically, they might be doing it for a reason, but constitutionally it's a waste of time, because there's actually other Supreme Court cases that say Congress cannot, whatever power it's using, Commerce Clause, the 14th Amendment, whatever, it can't use that power to try to overturn a Supreme Court decision interpreting the Constitution. They can do things with their spending power and taxing, but what you can't do is Congress go out and just say, "Well, the Supreme Court just did this. We're going to change it. We just order all the states to obey our law, not the Supreme Court decision."
REALLY? CONGRESS CAN’T OVERTURN THE COURT?
Yoo: Actually, Congress tried to do this in a conservative direction. I don't know if you guys... We were all working in Congress around this time. Remember the Religious Freedom Restoration Act? Justice Scalia, with a liberal majority on the Court, narrowed the rights of religious minorities for protection by the courts.
This was a very popular bill. I think it only had one no vote in both houses. President Clinton signed it. It said, "We are restoring the rights of religious minorities to the way they were before the Supreme Court decision." Then the Supreme Court, these guys, they might be conservative or liberal, but they all agree they are the most powerful body. Who are these people in Congress? How dare they? They unanimously struck down the Religious Freedom Restoration Act, said, "You can't try to overturn us."
THE ROLE OF THE COURTS
Yoo: [T]his leak shows why the court is right to do what it's going to do in Dobbs. Because the leak... Right? Like I said, you, me, we've seen all that happen in cabinet agencies, the White House. Congress wouldn't work if it weren't for leaks. But it's never happened in the courts before. I don't think there's ever been a full draft opinion leaked ahead of time before... Not just the Supreme Court. But I can't think of any level of federal court ever.
We're talking about hundreds of federal courts over many, many years. I can't recall this ever happening. And that's why it's so dangerous is because as I was suggesting, what you see because the courts have taken over these fundamental political issues. And you want to change them. You want to affect that policy. The only place you can do it is at the court.
You shouldn't be surprised to see more and more political methods, right? Invading the court system. And you see it as in the confirmation process. And now you're starting to see it in the way the courts make decisions. We keep going down this road. And I wouldn't be surprised you see multiple leaks on different important cases trying to affect. And then interest groups getting involved trying to affect the decision of the courts in between oral argument and the decision.
But why do people accept that rather than saying, "Let's keep the law and the politics separate. Let's have the courts interpret the constitution. Let's keep their range of cases narrow. And let's keep most political decisions in the hands of the legislatures."
SHOWNOTES
Table of Contents
Should Supreme Court justices believe in natural rights? | John Yoo | 04/07/2022 | Newsweek
Abortion debate leaves no room between extremes | Jonah Goldberg | 05/22/2019 | National Review
Why Supreme Court nominations prompt scorched-earth warfare | Jonah Goldberg | 02/03/2017
This was not only one of your best podcasts, it was the most insightful and informative on the whole Dobbs/Roe v Wade issue since the SCOTUS draft was leaked. Very well done.