By Dave Andrusko
At roughly 9 pm last night, Politico unleashed a firestorm of controversy when it published what it claimed to be a first draft of a decision overturning Roe v. Wade, written in February by Justice Samuel Alito.
National Right to Life responded by writing that NRLC “agrees with the statement of Mississippi Attorney General Lynn Fitch who said, ‘We will let the Supreme Court speak for itself and wait for the Court’s official opinion.’”
Mississippi’s ban on abortions after the 15th week was argued last December. The court is expected to release its decision in Dobbs v. Jackson Women’s Health Organization in the next two months. It is this case that the leaked memo refers to.
Chief Justice John Roberts responded this morning by releasing a public statement. He has “directed the Marshall of the Court to launch an investigation into the leak,” he wrote. As virtually everyone acknowledges, the leak of a draft of an opinion is unprecedented.
The introduction to the text of the letter makes a critical distinction.
“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
It was, after all, a draft subject to the give and take of the justices attempting to persuade one another of the rightness of their position.
As Amy Howe and James Romoser wrote late last night, “Initial votes on the outcome of a case can change — and the wording of opinions frequently does — as the justices deliberate and circulate draft opinions.”
For his part, pro-abortion President Joe Biden vowed to continue to defend Roe. But “ if the Supreme Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, 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.”
For now, one other question arises. Who leaked the memo? Who has an incentive to leak the memo now?
Cui bono—who benefits?