The leaked draft of the Supreme Court’s majority opinion in the Dobbs v. Jackson Women’s Health Organization case, authored by Associate Justice Samuel Alito, calls for overturning Roe v. Wade as well as Planned Parenthood v. Casey, previous rulings from the high court that established and then upheld a national right to abortion. If the leaked opinion is, in fact, consistent with the ruling the Supreme Court’s majority eventually hands down, it will have obvious and monumental implications for the legal status of abortion going forward.

But the decision — and the manner in which it became public — will also have wider consequences, impacting everything from the integrity of the once irreproachable, though now highly politicized, Supreme Court to the critical next steps of the pro-life movement.

To help sift through these various factors, the Register talked to three Catholics playing different roles in the pro-life movement and the wider pursuit of the common good. 

Charles Camosy teaches ethics at the Creighton University School of Medicine and serves as a fellow of moral theology at St. Joseph Seminary in Yonkers, New York.

Alexandra DeSanctis is a staff writer for National Review, visiting fellow at the Ethics and Public Policy Center, and co-author of the forthcoming book Tearing Us Apart: How Abortion Harms Everything and Solves Nothing. 

And Jenny Kraska, a lawyer by training, is the executive director of the Maryland Catholic Conference and has served as a consultor on several committees of the U.S. Conference of Catholic Bishops.

 

What strikes you as the most significant aspect of the legal reasoning articulated by Alito in the leaked majority opinion? 

CAMOSY: Well, lots has been said about this already, obviously. But maybe one very significant part of the ruling that isn’t being discussed that much is what was not said. A very significant part of the pro-life movement — and the Catholic pro-life movement at that — wanted the Court to find that prenatal children are persons under the U.S. Constitution. Though the Court acknowledged this was a possibility, they ultimately decided that it was beyond their purview. If the leaked opinion is basically the actual opinion, then, while it is a very good thing for pro-lifers, it is by no means the best possible outcome.

DESANCTIS: The opinion is a masterful and thorough repudiation of the shoddy legal reasoning and flawed history at work in both Roe and Casey. This aspect of the opinion is essential because it will help open-minded readers understand why the Court must overturn its previous jurisprudence to restore the rule of law. It's also especially important that Alito explains why stare decisis does not require keeping Roe and Casey in place. As he puts it, stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.”

KRASKA: Most significantly is the complete and full repudiation of Roe and Casey and their faulty legal reasoning. Justice Alito remarked that “Roe was also egregiously wrong and deeply damaging. … Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” He then goes on to conclude his draft opinion by stating that “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 those decisions and return that authority to the people and their elected representatives.”

 

A leak like this is unprecedented in the recent history of the Supreme Court. What do you think is the motivation behind it? What are its possible implications, both immediately regarding the Dobbs decision and also in terms of the integrity of the Court going forward? 

CAMOSY: This is a very, very interesting question to think about. My first instinct was that it was a clerk from one of the justices who disagreed with the opinion. And I still hold that view. But I admit being tempted by the possibility that someone who agrees with the opinion leaked it in a true move of 3-D chess.

Think about it: If the goal is to move a judge away from the Alito opinion, leaking it is about the worst thing you could do, right? You basically assure that they will want to project to the country that they cannot be moved by these things. That makes me at least wonder whether it was leaked by a supporter of the opinion who didn’t want certain justices to abandon it under pressure from Chief Justice John Roberts. As far as preserving the integrity of the Court, I wrote in my RNS column this week about the steps we need to take to dial down the temperature on this issue.

DESANCTIS: It strikes me as most likely that the leak came from someone who wants Roe and Casey to remain in place and who, fearing that the Court was certain to overturn them, hoped to sow discord ahead of time and perhaps thwart that eventual ruling or undermine its legitimacy. The leak makes it more difficult for the Court to issue any ruling other than what Alito has outlined, because to do so could give the appearance that the justices altered the outcome in response to the leak. This obviously constitutes an unfortunate state of affairs for the Court and its integrity, but I fear it will be impossible to put the genie back in the bottle.

KRASKA: The motivation was likely an attempt to undermine the integrity of the inner workings of the Court. One possible implication regarding the Dobbs decision is that this leak will result in public pressure being put on the justices in the majority to change their decision(s). In terms of the integrity of the Court going forward, there will likely be a great deal of mistrust between the justices and staff: This was a damaging breach of trust that will have lasting implications. 

 

The leak has prompted a flurry of misleading messaging and distorting talking points from proponents of legalized abortion. What's one instance of this that has stuck out to you, and how would you respond to it?

CAMOSY: She is absolutely not alone in having this view, but CNN’s Kassie Hunt said that “Overturning Roe v. Wade will impact Americans with the fewest resources, not the wealthy or well-connected.” This is, at the very least, missing important context, given that Gallup and others consistently find that it is the economically vulnerable who are the most anti-abortion and the economically privileged who are the most in favor of abortion rights. It is quite something for our most privileged classes to use the poor as talking points in favor of their own views on abortion — views the poor, by and large, do not share.

DESANCTIS: Supporters of legal abortion argue that the Court will delegitimize itself if it overturns Roe and Casey, pointing to recent polling that indicates a majority of Americans say they support Roe. In fact, though most Americans do say they want Roe to remain in place, most Americans would also prefer to see abortion limited to the first trimester, if they would permit it at all. 

In other words, most Americans want far more pro-life laws in place than are permitted under the Court's current jurisprudence — they simply don’t know that these cases are preventing such a status quo from existing. Meanwhile, it isn't the role of the Supreme Court to cater to public opinion; it is the job of the justices to interpret and apply the Constitution faithfully.

KRASKA: One instance is that this opinion somehow calls into question other rights. For example, this sentiment is reflected in a tweet by a Mr. Robert J. DeNault (who identifies himself as a Duke Law alum and occasional journalist): “This portion of Alito’s opinion striking down the right to abortion (about Due Process rights under the 14th Amendment) would also apply to the right to contraceptives, interracial marriage, sexual freedom, same-sex marriage. All are at risk if 4 justices join Alito. Stunning.”

I would respond by encouraging people to read the [leaked draft] opinion in its entirety. Justice Alito is clear “… to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

 

 If Roe is, in fact, overturned, and the question of legalized abortion is returned to the states, what is one thing you would encourage pro-life people to prioritize going forward? 

CAMOSY: The economically vulnerable get hit from “both sides”: by conservatives who often don’t care or reject their claims about economic justice and by progressives who often don’t care or reject their claims about prenatal justice. The pro-life movement must therefore redouble our efforts to resist our toxic policy binary and be a unique political force which puts ourselves at the service of economically vulnerable populations who are very often structurally coerced into having abortions they don’t want to have.

DESANCTIS: It will be essential for pro-lifers to take a "both/and" approach to creating a pro-life America in a post-Roe era, by which I mean we will need extensive pro-life efforts at both the legal and cultural levels. We must protect unborn children under law and support mothers and families to help them choose life. One of the most important aspects of the cultural battle for pro-lifers will be learning to advocate pro-life policy in a compelling way, helping those around us to understand that, far from being a solution, abortion has been deeply harmful to all of us.

KRASKA: If Roe is overturned, it will be the single greatest turning point for the pro-life movement in my lifetime. The potential overturning of Roe will mean the end of one era in our country and the beginning of a new one that will require a significant amount of work: work in state legislatures, work to educate people, and, most importantly, our continued work to support mothers and children in need. I would encourage all pro-life people to find ways to get involved at the state level to help break down economic, social, racial, employment and emotional barriers that lead women into thinking abortion is the only option.