The leaked opinion overruling Roe v. Wade (1973) (and also the later Casey opinion [1992], affirming the "core" holding of Roe) written by the right-wing Catholic justice Samuel Alito of the U.S. Supreme Court was most probably leaked by an abortion opponent worried that some of the other conservative Catholics who had joined the draft of Alito's opinion (Justices Coney Barrett, Gorsuch*, Kavanaugh, and Thomas) might defect (Thomas was certainly not a risk for defecting, the others possibly). (see Joey Fishkin [UCLA] on Twitter for this hypothesis.) As my colleague Geoffrey Stone observed regarding a badly reasoned 2007 anti-abortion decision by SCOTUS:
What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.
This time around one conservative Catholic (Chief Justice Roberts) was missing, but as recent years have shown, he is nervous about the Supreme Court being treated as the super-legislature it is. Stone's analysis generated an uproar, but it was correct then, as it would be correct now: someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result). (To understand how reactionary Justice Alito is please note that as a young alumnus in his 20s of Princeton University he joined in the early 1970s the "Conservative Alumni of Princeton," a group formed in reaction to Princeton admitting women!)
And the unhappy fact is that there are clearly colorable legal arguments for overruling Roe. The SCOTUS that decided Roe was as much a super-legislature as the one that seems poised to overrule it. The difference is that the earlier SCOTUS was on the side of progress and equality for women, and not in the grips of religious delusions about personhood. SCOTUS discovered a right to privacy in 1965, in striking down Connecticut's idiotic law prohibiting married couples from using contraceptives; SCOTUS then extended that right to unmarried couples who wanted to use contraceptives, and then to abortion. That SCOTUS did the right thing. But that was it: when asked to extend the reasoning about the "right to privacy" to consensual homosexual relations in the privacy of the home, the later super-legislature declined in the 1980s (a decision reversed in the 2000s, but on a different constitutional basis).
The current super-legislature, dominated by conservative Catholics, does not want to "discover" rights that aren't explicitly enumerated (and even with some of the enumerated ones, it has doubts). It professes an allegiance to the "original" understanding of the Constitution, even though there is nothing in the Constitution that commands that choice either. It is a reactionary super-legislature, rather than a progressive one. Although most of the conservatives on the super-legislature are more skillful lawyers than Justice Alito, that does not change the fact that the real objection to them has to do with their values and prejudices, not their legal skills.
There is one silver lining in this ominous storm cloud. Because legal abortion is so widely supported--and because the hostility to abortion based on sectarian religious premises is shared by only a minority of the population--the overruling of Roe may actually save the Democratic majority in Congress come the fall. As with many political victories, it will come at the cost of the suffering of those who cannot access legal abortion in the months ahead. But a silver lining is better than none.
*Gorsuch was raised a Catholic, but is now an Episcopalian.
UPDATE: A brief reply to Professor Garnett.
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