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The political consequences of the Supreme Court's leaked draft opinion on abortion

Abortion rights and anti-abortion activists demonstrate in front of the Supreme Court on Tuesday.
Anna Moneymaker
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Abortion rights and anti-abortion activists demonstrate in front of the Supreme Court on Tuesday.

The draft opinion from the Supreme Court obtained by Politico that shows the conservative majority ready to overturn Roe v. Wade, which made abortion legal in this country almost 50 years ago, is going to have wide-ranging political consequences.

While it's a draft opinion and justices can change their votes before a final decision, this draft ruling has the potential to be an earthquake in this election year.

In a statement, Chief Justice John Roberts confirmed the authenticity of the draft opinion and said the leak would be investigated.

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed," Roberts said. "The work of the Court will not be affected in any way."

On the left, there are likely going to be mass demonstrations from women — and men — in favor of abortion rights — and the draft opinion could fire them up to vote in a midterm year in which Democrats are facing enormous political headwinds.

"I believe that a woman's right to choose is fundamental," President Biden said in a statement. "Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned."

But what to do about it is another question.

There will be pressure to end the filibuster

The draft opinion is going to raise the pressure on Democratic congressional leaders to get rid of the filibuster and pass legislation that codifies abortion rights in this country.

Cases in point:

Similarly, on the campaign trail, Democratic Senate candidates in Wisconsin and Pennsylvania — Democrats' top two pick up opportunities this year — for example, are calling for that.

"Democrats have to act quickly and get rid of the filibuster to pass the Women's Health Protection Act + finally codify Roe into law," Pennsylvania Lt. Gov. John Fetterman said. "We cannot afford to wait."

"It has never been more clear why we need to abolish the filibuster and take immediate action to protect every person's right to make decisions about their own bodies," Wisconsin Lt. Gov. Mandela Barnes said.

House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer said in a statement Monday night that conservative justices have "lied" to the American people because during their confirmation hearings for the Supreme Court, justices repeatedly said Roe is "precedent" and the "law of the land."

Schumer said Tuesday that the Senate would vote – again – on making the right to an abortion law through congressional action.

But that vote would largely only be symbolic.

Democrats do not have 60 votes to overcome a Republican filibuster. And a similar vote already failed earlier this year, with Democratic Sen. Joe Manchin of West Virginia joining Republicans in voting against it.

That included pro-abortion-rights Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. They said the Democratic legislation went "too far."

"I have long supported a woman's right to choose, but my position is not without limits, and this partisan Women's Health Protection Act simply goes too far," Murkowski said in March. "It would broadly supersede state laws and infringe on Americans' religious freedoms."

Murkowski and Collins instead introduced their own scaled-back legislation.

That Democrats don't have the votes for it is likely one reason Schumer did not explicitly endorse or outline a strategy to overturn the filibuster.

Biden also notably stopped short of endorsing the elimination of the filibuster in his statement Tuesday morning.

"At the federal level," Biden said, "we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law."

But with Republicans favored to take back the House and possibly the Senate this fall because of concerns over inflation, the clock is ticking.

Expect more distrust of the confirmation process

Collins voted for Trump-appointed Justices Brett Kavanaugh and Neil Gorsuch. In her reason for voting for Kavanaugh, she explicitly said it was because of the way he described Roe and the 1992 affirmation of the decision, Planned Parenthood v. Casey, as "precedent" and "precedent on precedent."

Supreme Court Judge Neil Gorsuch — then a nominee — meets with Sen. Susan Collins in her Capitol Hill office on Feb. 9, 2017.
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Supreme Court Judge Neil Gorsuch — then a nominee — meets with Sen. Susan Collins in her Capitol Hill office on Feb. 9, 2017.

"When I asked him, would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided," Collins said in her Senate floor speech at the time announcing her vote, "he emphatically said, 'No.' "

During his confirmation hearings in 2017, Gorsuch called Roe the "law of the land," said he accepts that and noted that a "fetus is not a person."

On Tuesday, Collins said: "If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office."

The playbook at those hearings has been to be vague and not be forthright. But this draft opinion now threatens to end any good-faith in those lengthy Supreme Court confirmation hearings – and the things nominees for these lifetime appointments say in them.

There's likely to be a further erosion of trust at the Supreme Court

Gallup found in September that the court's approval had hit a new low – 40% – since it began tracking that figure in 2000.

The draft opinion, and the leak itself, will only further make people believe the court is political. The justices, people may now believe, don't tell the truth when they are sworn in before Congress and the people at the court can't trust or be trusted.

Initial votes can shift, and make no mistake: this leak was likely designed to gain the kind of wildfire-like attention it's getting and encourage mass protests in the hopes that votes can be swayed.

Ironically, this decades-long shift has taken place under Roberts, who is acutely aware of the politics of the court and wanting to keep it out of the political line of fire.

Americans want abortion to remain legal, with restrictions

Republicans have used culture war issues to fire up their base, and no issue is more central to that than abortion.

But it's worth pointing out that the latest NPR/PBS NewsHour/Marist poll showed Democrats with an 11-point advantage on the question of which party Americans think is better at dealing with abortion as an issue.

An ABC News/Washington Post poll out last week had similar numbers, so the NPR poll is not an outlier.

The overwhelming majority of Americans believe abortion should remain legal in some form, according to survey after survey in this country – despite abortion being a tinder-box issue that people have very strong feelings about.

In fact, a 2019 NPR/PBS NewsHour/Marist poll found three-quarters of respondents said abortion should remain legal in some form. Just 13% said Roe should be overturned. (Gallup similarly found that only about 1-in-5 believe it should be illegal in all circumstances.)

Public opinion becomes more divided when looking at the circumstances of an abortion or how many weeks or months when one would take place, but a Supreme Court opinion outright overturning Roe would be woefully out of step with the American public.

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