As Roe v. Wade draft leaks, questions abound

The U.S. Supreme Court’s majority opinion draft overturning Roe v. Wade, which provides federal protections for abortion, was leaked to news organization Politico and revealed to the public May 2.

If their opinion does not change between the draft and its release, individual states will have the authority to determine their abortion policies, paving the way for reduced abortion access across the South and large swaths of the U.S.

It’s a major ruling with major implications, and it being leaked ahead of release has spawned some huge questions. Who leaked it? For what purpose?

The original Roe v. Wade opinion was leaked, too, but to a much lesser degree and only after the final draft was already complete.

University of Alabama Political Science Associate Professor Allen Linken said the Supreme Court operates with quite a bit of secrecy and there are major reasons why.

“There is one concern that we lose public confidence,” Linken said. “Strangely, normally we gain public confidence when we see things. One argument is that we lose public confidence or lose the trust in the Supreme Court if the Supreme Court is seen as overly patrician or if we learn how the sausage is made.”

In Politico’s release of the draft, the organization noted that no draft decision written by the court has been made public while the case remains pending.

“It’s generally a protected draft,” Linken said. “The court is very collegial, is very secretive. They have a lot of norms and procedures that do their best to keep it quiet. For example, there are no cameras in the courtroom, so there is this fear that the Supreme Court would turn to politicking or would be more open to political pressures.”

The final draft likely won’t be published for several months, Linken said, and in that time a lot can happen.

“There are multiple instances throughout history where the draft opinion has changed,” Linken said. “Sometimes you read a draft if you are a justice and say ‘whoa, that’s too far for me’ or ‘I don’t think that we addressed this issue well enough.’ ”

Linken said the draft’s leak has created an ongoing worldwide debate and is sparking fears that the Supreme Court is not trustworthy.

“Is this opinion, is this leaked of opinion and the public opinion, public pressure going to change the vote? I don’t think so,” Linken said. “The five justices in the majority are fairly aligned on this point.”

According to the 14th Amendment of the U.S. Consitution, life, liberty or property cannot be taken away without due process. Life and property are pretty clear-cut, but what does liberty mean?

“Liberty is not defined in the Constitution,” Linken said. “Abortion is not mentioned in the Constitution. Privacy is not mentioned in the constitution. So it’s these rights that are open to interpretation because they are not guaranteed by the Constitution that was created using an interpretation of a word. Interpretations can change, and this interpretation is a very narrow interpretation of powers and rights that are not found in the Constitution.”

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