Roe v. Wade

Face the Facts: Impact of Leaked Supreme Court Roe v. Wade Draft Decision

Quinnipiac University Law Professor Stephen Gilles discusses the potential impact of the Supreme Court leak.

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Some Connecticut lawmakers are calling the Supreme Court’s leaked draft decision an outrage and an attack on women.

Reproductive rights advocates and many of Connecticut’s Democratic lawmakers stood together at the state capitol this week to declare their disgust with what they say they’ve read in the Supreme Court’s leaked Roe v. Wade draft opinion.

It comes just days after they passed the most sweeping abortion legislation our state has seen in the past few decades.

Who had access to the document? What motives would someone have for releasing it? What can we learn from the document?

Someone who's been near the front lines of this Supreme Court fight over the years is Quinnipiac University Constitutional Law Professor Stephen Gilles.

In additional to the decades in the classroom, his long list of credentials includes clerking for former Supreme Court Justice Sandra Day O'Connor and Supreme Court nominee Robert Bork when has was on the U.S. District Court.

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NBC Connecticut's Jane Caffrey sat Down with University of New Haven's Brian Marks to discuss the ongoing controversy.

Mike Hydeck: "So first up, what are your thoughts on who could have leaked this Roe v. Wade draft opinion? Who has access to a document like that?"

Stephen Gilles: "A lot of people have access, the justices themselves. So a draft opinion like this would be circulated to all nine chambers. The justice sees it, the justice's secretary or administrative assistants see it, the justice's law clerks, in all likelihood see it. And then there may be some other administrative and staff people in the court, I think I saw the number as many as 70, may have had access to it. So it will not be easy, I think, to quickly identify who leaked it."

Mike Hydeck: "There are so many opinions, both from the liberal and conservative side on who would benefit from a leak like this. Some people say the Democrats wouldn't benefit, it would just poison their argument. Others say, why would conservatives do it? It's a shot against the court. What do you think about that?"

Stephen Gilles: "So what I think is you can tell plausible stories that the leaker is someone who's on this line with more conservative justices, or that it's someone who's aligned with the more liberal justices. I would suggest that it's useful to think about two different kinds of influence. One is, is the leaker hoping to influence one or more of the justices to change their votes, jump ship, something like that. The second one is, was the leaker doing this in order to influence the American public to give one party or the other an issue to run on? And I think when you look at it in those two different ways, you might end up with two different likely stories as to who did it. So I don't have a definite answer."

Mike Hydeck: "You can pick either one. Okay, so what's the likelihood a first draft opinion changes, do you think, especially on something so controversial?"

Stephen Gilles: "So it can happen, and it's happened before with abortion. In the Casey case in 1992, five justices, including Justice Kennedy voted to overrule Roe at conference. But Justice Kennedy changed his mind a couple months later and as a result, five votes. Justices voted to uphold Roe v. Wade. So that's happened before. In this instance, I think that it's likely, although we don't have any proof, but it's likely that five justices voted at conference and to join to overrule Roe. That's not the same as joining this opinion. We don't know that any justice other than Alito has actually joined it, joining an opinion is kind of a commitment. And so if Politico had proof that the five have joined it, then I'd be saying it's very unlikely that this will not hold up. But we don't have that kind of proof. And indeed, as I suggested, there's good reason to think that and we, including other leaks to the Wall Street Journal probably, that one of the justices in that group of five may be on the fence. And that Chief Justice Roberts may be working to draft a more narrow opinion that would uphold Mississippi's law, which bans abortions after 15 weeks, but that would still preserve a federal constitutional right to an abortion early in pregnancy."

Mike Hydeck: "Yeah, the pieces in the Wall Street Journal tended to lean that it was the chief justice that may or may not do that. Okay, so your former boss Justice Sandra Day O'Connor was a Ronald Reagan appointee. She was personally against abortion, but she was also the first woman on the Supreme Court and she was asked extensively in her confirmation hearings about abortion. She did, though, actually uphold Roe in a couple of cases. Why do you think she did that?"

Stephen Gilles: "She not only upheld Roe and Casey. Justice O'Connor was one of the architects of saving Roe, one of the justices who she and Justice Souter, or at least what we've been told, I think we've learned from the kiss and tell books from inside the court. She and Justice Souter kind of worked with Justice Kennedy. And a big factor, which this Alito draft discusses, was those three justices argued that the court's legitimacy would be undermined, after all the controversy over Roe over 20 years, if the court overruled it, because people would think the court is caving into political pressure. Justice Alito in this draft answers that. He says the court's job is to ignore political pressure from both sides and just decide on the basis of his best understanding of the Constitution, whether or not there really is a fundamental right to elective abortion."

Mike Hydeck: "Yeah, she thought the court would be undermined if that happened. So around 20 states with conservative leadership already have laws on the books, trigger laws, that would go into effect if the Supreme Court does indeed decide to overturn Roe. Congressional Democrats want to codify laws surrounding abortion before they get there. Would federal law supersede state law if that happens?"

Stephen Gilles: "Well, there's an unanswered constitutional question, Mike, about whether Congress could pass a federal law that either, at one extreme prohibited elective abortions or at the other, that required states to permit selective abortions. We don't know for sure that Congress can do either one of those things. And I would say politically, right, the chances that Congress, that you're able to get a law like that through Congress, are slim. So if Congress passed such a law and it was constitutional, it would indeed, as you said, supersede state laws. It would be the supreme law of the land."

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