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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.

F. Brent Leatherwood

Brent Leatherwood was elected as president of the Ethics and Religious Liberty Commission in 2022, after a year of leading the organization as acting president. Previously, he served as chief of staff at the ERLC, as well as the entity’s director of strategic partnerships. He brings an expertise in public … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24