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Understanding the draft opinion leak of the Supreme Court

The most consequential leak of our lifetime

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May 3, 2022

A young contractor for the National Security Agency fled our nation in the spring of 2013. Within a matter of weeks, he would release a trove of highly classified documents related to America’s surveillance operations around the world. The effect his disclosures had on the U.S. intelligence community is hard to overstate. Numerous reforms have since been put in place. Cases about the programs have been litigated. Public policy debates centering on where to draw the line on national security and individual privacy continue to this day. Without a doubt, what Edward Snowden did was the most consequential leak I have seen in my years of working in public policy.

That is, until May 2, 2022.

Social media platforms, office chatter, and cable news are all abuzz regarding the stunning Politico report about a leaked majority opinion from the U.S. Supreme Court that suggests the court is prepared to overturn the disastrous precedents set in Roe v. Wade and Planned  Parenthood v. Casey that gave us our current abortion legal framework. Assuming this opinion holds –– which, to be clear, no vote or opinion of the court is final until it is published –– it will mark a hopeful and substantial step toward establishing a true culture of life in our nation by giving states the freedom to pursue policies that protect preborn children. Christians should be in earnest prayer for such a moment.

In addition, I would suggest that it is helpful to explore at least a few of the myriad ramifications of this event.

The veracity of the leaked opinion

I have already had a few pastors ask me if this draft document is legitimate. Chief Justice Roberts, in a press release issued by the Supreme Court, confirmed the draft’s authenticity. However, he emphasized that “it does not represent a decision by the Court or the final position of any member on the issues in the case.” The working draft, composed by Associate Justice Samuel Alito, shares the perspective of a majority of Supreme Court justices on the Mississippi abortion case known as Dobbs v. Jackson Women’s Health Organization. This case was argued last December and, ordinarily, a preliminary vote is taken by the justices to determine where they come down on a case. Since this is drafted as the “opinion of the Court,” we can assume at least five justices are in favor of the ruling. On that note, the Politico report contains this bit of information from a source:

A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.

The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.

A culture of life

We have used the term “culture of life” in other pieces and places (including in the preceding paragraphs). But to ensure there is clarity about its meaning, let me state here what we at the ERLC mean. At the most basic level, establishing a culture of life in our nation means advancing policies and protections that prevent preborn children from having their lives snuffed out by abortion. 

Overturning the Roe-Casey precedents will mark massive progress toward this goal as the jurisprudence stemming from these cases has been the number one factor inhibiting pro-life laws from taking affect. That is what makes the Dobbs case so unique: It goes right at the heart of these prior decisions by questioning the “notion of viability as legal standard” and, importantly, is before a court that seems willing to entertain this line of argument (each year, the court only hears a fraction of the appeals that are made to it). 

But you cannot work in this field very long before coming to the realization that defensive measures protecting life, though absolutely essential, are not nearly enough. Any number of complex factors go into a woman’s decision to abort a child, including economic, cultural, and personal concerns. Do any of these outweigh the child’s right to take her first breath? Christians would rightly say “no.” Yet, that does not mean we should ignore those contributing issues. Instead, we should advance policy solutions that make abortion both unthinkable and unecessary. Failing to account for those perspectives is where abortion activists derive their “only care about the baby until it is born” talking point. That is why we have continually counseled policymakers, at both the federal and state level, to take an expansive approach to ending abortion that not only saves the life of the child but supports vulnerable mothers and families in crisis. 

Vulnerable mothers

In the wake of this leaked revelation, there will no doubt be many mothers currently carrying an unplanned child,  and other women, who are going to be fearful of what all this means. If they aren’t already thinking along these lines, Planned Parenthood, the abortion industry giant, will no doubt instill that fear in them. While Planned Parenthood couches its concern in notions of privacy and bodily autonomy (conveniently sidestepping the autonomy of the child), they realize the taking down of Roe and Casey is a direct threat to their finances –– and their very existence.

But we must avoid losing sight of those mothers. Some of them are legitimately in crisis because, in many instances, they have been told the lie that their lives and livelihoods are going to be negatively affected by the birth of this child. So our words in this moment should not be ones merely of celebration about what is contained within this draft opinion, but also of care for those who will not greet this news with joy.

The role of state legislators

Given the framing of the opinion, if it becomes reality, a massive issue will be turned over to state legislators across the country. The debates we see taking place annually in Washington will now be closer to home, taking place in our state capitol buildings. Some states, because of laws passed preparing for this moment, will immediately move to a pro-life legal posture. Other states will initiate the process to codify abortion as right in their state and pass laws that are far more permissive than what they have had previously.

Whatever the context, my advice to these state leaders is this: Resist the urge to use this moment for pure political gain. Avoid the temptation to step back into partisan corners. Instead, this should be seen as a watershed moment to do what our consciences tell us to be true — save lives.

Now is the time to innovate new policies that serve mothers and families, give every child the right to take his or her first breath, and promote flourishing. In recent years, our work at the state and local level has increased considerably as more and more substantive policies are passed because of the dysfunction in Washington. The ERLC stands ready to work with governors, majority and minority leaders, and legislators of all stripes to help them create and implement laws that respect human dignity. But that can only happen if lawmakers are willing to put down the weapons of political warfare and take up the plow of policymaking. The reality is that a culture of life will not be established through the methods of culture-warring.

What this means for the court

In all of this, we also must acknowledge the damage this leak does to the institution of the court. It represents an incredible rupture of the protocol that has governed private court deliberations since its inception. Moreover, due to the very fact ​this​ is a draft, a potentially combustible environment has now been created where some actors may try to pressure the court to change course. Merely uttering that thought takes one’s mind down some dark corridors given ​our low state of affairs. 

So what should the justices do? In addition to undertaking an investigation about the leak (which reports confirm is underway), I would urge the court to move with all deliberate speed to finalize and publish this decision as soon as possible. As stated above, it would immediately usher in a new era in many states when more preborn lives can be saved, and it would show, despite their differences, these justices will not be bullied by anyone seeking to operate outside of its established processes. 

The Church in this moment

This has been said a number of times by pastors and ministry leaders but it bears repeating here: The end of Roe would mark a new beginning for the pro-life movement. Churches will be essential in this coming moment. Already I have been told stories of individual congregations partnering with local foster programs, supporting local Baptist children’s homes, teaming up with pregnancy resource clinics in their communities, and helping policymakers in their pews understand the inherent worth and value of every child. 

If this draft opinion becomes reality, all of this and more will be needed. The support that mothers in crisis need from lawmakers must first be modeled well by the church. But before we get to that, we must be engaged in a season of earnest prayer. If it is helpful, here is how I will be praying and I invite anyone reading this to join me: 

In June 2003, the Southern Baptist Convention passed Resolution 8 marking 30 years since the Roe decision was handed down. It contained these words: “RESOLVED, That we pray and work for the repeal of the Roe v. Wade decision and for the day when the act of abortion will be not only illegal, but also unthinkable.”

The ERLC’s current messaging on abortion is grounded in this language from nearly two decades ago. The resolution prayerfully envisioned a day when this nation would enter a post-Roe moment. This leaked draft opinion would indicate we are closer than we have ever been to that reality. When that day is upon us, we will enter a time when the inherent rights of life, liberty, and the pursuit of happiness are finally extended to our most vulnerable neighbors.

Brent Leatherwood

Brent Leatherwood currently serves as Acting President of the ERLC, as well as Vice President of External Affairs and Chief of Staff. Before coming to the ERLC, he served as the executive director of the Tennessee Republican Party from December 2012 to December 2016, where he managed the organization’s campaign apparatus at … Read More