The leak of Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization shocked even the most hardened political observers. Most people expected the Court to uphold the Mississippi abortion law at the heart of the case. Many even expected the Court to overrule Roe v. Wade and Planned Parenthood v. Casey, the infamous decisions that discovered a “right” to abortion written between “emanations” and “penumbras” of the Constitution in invisible ink. But no one seems to have expected that someone from inside the high court might leak the opinion to the press. In a statement confirming the document’s authenticity, Chief Justice John Roberts called the leak a “singular and egregious breach” of “the trust of the Court.”
The most surprising aspect of the entire episode is that anybody should be surprised at all. Of course, they leaked the opinion. These people kill babies. Not only do they kill babies, but they defend the killing of babies, not only as an evil to be tolerated but as a good to be enjoyed on demand at any point of pregnancy and celebrated with shouts of glee. Compared with infanticide, the upsetting of institutional norms is child’s play.
The late, great Norm Macdonald once mocked a friend’s suggestion — at the time a common refrain — that the worst aspect of disgraced comedian Bill Cosby’s sexual crimes was “the hypocrisy.” “No,” Norm responded, “I think it was the raping. It’s my feeling that most rapists are hypocrites.” A man willing to commit enormous sins will more easily commit lesser sins. One struggles to imagine a more egregious sin than killing an innocent little baby.
Pro-lifers surprised by the leaker’s incivility may have fallen prey to their own press releases, which for half a century have focused on the technical unconstitutionality of Roe over the evil of abortion itself. Pro-life advocates reflexively point out that the overruling of Roe will not outlaw abortion throughout the country but merely “return the question to the states, where it belongs.” No matter what one thinks about abortion, many pro-lifers argue, we should all agree that the Court ought not to have infringed on the right of the people to decide the matter for themselves. The Court’s primary error in Roe and Casey, they argue, is not so much what it decided about abortion as who it concluded has the right to decide.
To the argument’s credit, it appears to have worked. Some conservative legal scholars, such as John Finnis and Robbie George, have argued that the Supreme Court should in fact decide the issue because the Fourteenth Amendment of the Constitution outlaws abortion at the national level. Regardless, Alito’s leaked opinion suggests that the Court favors the jurisdictional modesty of the more common claim that federalism and the separation of powers compel the Court to overrule Roe and Casey. To restrict abortion, such an argument might suffice. But to understand abortion advocates’ “singular and egregious” reaction to such a decision, one must go deeper and admit that Dobbs is not really about the relative status of jurists and lawmakers, of the states and the federal government; it’s about the license to kill babies.
Some Supreme Court cases stand out as vessels for esoteric legal debate. Others raise more urgent, practical questions. In United States v. Ninety-Five Barrels Alleged Apple Cider Vinegar, for example, the Supreme Court ruled that the Douglas Packing Company had mislabeled its product by neglecting to distinguish between “selected apples” and “dried apples.” In Roe v. Wade, the Court consigned 62 million babies—and counting—to ritual slaughter.
Abortion advocates call this child sacrifice “sacred.” They will not easily accede to displease their gods. The overruling of Roe has already overturned the ordinary judicial process because Roe is no ordinary case. One fears the leak may be the least of the resistance.