Quick Thoughts on Alito's Draft Opinion and the Fallout

I am sitting on an essay I wrote in the wake of the oral arguments in Dobbs that I might end up publishing here, but until then, a few thoughts on the news from the last 24 hours.

Yesterday evening something unprecedented took place as a draft opinion of the Supreme Court’s decision in Dobbs was released to Politico. (There has been a lot of speculation regarding who might have leaked the opinion, but for now the most specific assumption I’m willing to make is that it was leaked by someone who sought to influence and manipulate decisionmaking. If that assumption is correct, regardless of the motive, it’s unethical, and a shameful misuse of one’s position.)

The draft opinion, if and when it becomes the decision of the Court, would overrule Roe and Casey, and allow states to regulate abortion as they see fit with significant latitude. The decision would, quite literally, set us back fifty years, to a time when legislation was the primary force shaping abortion laws as opposed to judicial decisions and judgments.

What will not be rolled back, what cannot be rolled back, is the toxicity of abortion politics in this country. The Supreme Court’s decision to step in and impose a legal regime on the nation by its own whims set off a cascade of consequences that transformed our politics. It accelerated distrust of political participation and government. It defined religious political participation to a great extent. In seeking to impose a settlement, the Supreme Court left the American people with the idea that a political settlement of their own making was beyond their capacity.

Senate Majority Leader Chuck Schumer is promising a vote today in response to the leaked Alito opinion on The Women’s Health Protection Act, legislation that he claims would “codify Roe,” when in fact, it would establish an abortion regime that is far more permissive than what Roe requires. This is an odd response, is it not? On the precipice of the complete overturn of Roe, you might think (if you are pro-choice) that now is the time to build as broad a coalition as possible to codify some baseline federal protections for access to abortion. Instead, Schumer is about to hold a vote today that is not only likely to fail, but it might not even receive the support of every Democrat in the Senate.

Politically, I’m not sure how all of this shakes out. First, I’m not convinced Alito’s opinion will hold. That is an open question.

Second, if the Supreme Court does overturn Roe, I think we’ll see the first real significant shift in public opinion around abortion that we have seen in the fifty years since Roe. I suspect we’ll see some pro-choice sentiment rise, but I also expect some surprises. The American people have not had to think about the specifics of abortion policy in this country for a long time. There’s reason to believe, for instance, that many believe overturning Roe is equivalent to banning abortion. Public opinion can go a number of different ways in reaction to a major Supreme Court decision, and they don’t necessarily have to be coherent or consistent.

Third, I suspect Democrats will be unable and/or unwilling to keep from centering abortion rights in the upcoming midterms. Maybe public reaction to such a significant decision from the Supreme Court is so strong that it overcomes the headwinds Democrats are facing heading toward November. But it’s also possible that while Democrats might stem some of the bleeding, that they will still suffer major losses in November, and therefore be both unable to respond legislatively to the decision, while also facing the perception that the American people have decided they’re OK with the new status quo on abortion. Republicans have their talking points, and while I doubt their ability to hold to them, they strike me as potentially effective.

I’m also not sure how this plays out substantively. I’ll write about this more later, but it’s possible the pro-choice movement’s greatest vindication will be in the aftermath of the development it always feared. This could play out similarly to prohibition, where the threat of the prohibition of alcohol was always present up and until the ramifications of its enactment were made clear to a generation. Such a scenario here implies profound harm to individuals and society as a result, and we should all hope to avoid that.

While I do not believe our politics right now is likely to accommodate pivoting from this moment to one focused on the well-being of women, children and families, I do think this could be the aim of Christians. Our politics is likely to devolve deeper and deeper into zero-sum reactions, but Christians should seek to address persons and their needs. The Child Tax Credit expansion should be brought back. Pregnancy discrimination combated with ferocity. Maternal health and child nutrition support expanded. Adoption strengthened and supports for birth mothers established.

I’ve advocated for this kind of agenda to support women and families, and reduce the number of abortions in this country, for over fifteen years. I helped a president advance it. It’s recently grown in popularity in evangelical circles to advocate for economic and social supports for women and families to reduce the number of women seeking abortion. Many Catholics and other Christian communities have a longer track record supporting these kinds of policies. Still, a decade ago, and still today among some in the pro-life community, it was viewed as weak or as a concession to the left. Today, some of the very voices advocating now for these kinds of policies undermined efforts to do so earlier this century. I guess that is how change happens. And it is change that we need. Regardless of what the Supreme Court decides, we will continue to live in a country in which too many mothers and families do not get the support they need. This is a time for asking what kind of country we want to live in, and building toward that vision.