Flat White

Roe v. Wade v. the Rule of Law

5 May 2022

4:00 AM

5 May 2022

4:00 AM

Last year, the US Supreme Court heard an argument in the case of Dobbs v Jackson Women’s Health Organisation which concerns Mississippi’s 15-week abortion ban. This case was seen as a challenge to the 1973 decision of the Court, namely Roe v Wade, which decided that in accordance with the US Constitution, under certain conditions, the states may not prohibit abortions during the first six months of pregnancy. According to an initial leaked draft majority opinion (i.e., judgment) allegedly written by Justice Samuel Alito and obtained by Politico, the US Supreme Court has decided by a 5-4 majority to overturn Roe.

This piece is not about my views on abortion, or indeed, abortion at all. Many polls in the US show that this issue divides Americans down the middle, as one would expect.

This piece is not about the merits of Alito J’s alleged opinion, save to say that, if indeed it is confirmed, the decision in Dobbs does not ‘cancel’ or outlaw abortion. It returns the matter to the states – to the various state legislatures and the voters in those states who elect their representatives – as jurisdictionally proper to them, which, by the way, is also the case in Australia. Thus, the states can legislate as they wish on the issue, whether to restrict access to abortion or liberalise it, as the case may be. So, while Texas would be free to restrict abortions, Colorado would also be free to keep its status as one of the least restrictive states in this regard. The late Ruth Bader Ginsburg, the notably ‘liberal’ Supreme Court justice, had remarkably questioned the merits of Roe.

What this piece is about is, as its title suggests, yet another attack on the rule of law.

Let’s think about what has happened here. Someone within the US Supreme Court has decided to leak a draft judgment to the media. This has never occurred before in the history of the Court.

Judgments are only made public when the court is ready to deliver them. One can only surmise that this act was committed to put pressure on the Court to change its decision. The draft opinion in question was dated February this year. Drafts can go back and forth between justices until they are delivered in final form and issued as official opinions of the Court. Opinions can therefore change. 

Shannon Beam, the Fox News correspondent for the US Supreme Court for several years, noted that in the Affordable Care Act Case (Obamacare), it was understood that several drafts were circulated between the justices and Chief Justice Roberts, in the end, held Obamacare was constitutional and was the deciding vote. However, the draft opinions were never leaked, since such drafts are very tightly held and it is astonishing that it would happen. While other government agencies leak like a sieve, the one institution that does not is the US Supreme Court. Thus, this is a shocking development. 

It is not the opinion that is the issue here. It is the leak.

Leaks happen for a reason, ostensibly to arouse public pressure surrounding a particular issue. Putting public pressure on a court to make a decision a particular way amounts to the most heinous undermining of the rule of law. It is why we have the sub judice rule.

Chief Justice Roberts declared the leak was an egregious breach of trust. Since the leak, vituperative criticism of the draft opinion, and of Supreme Court justices, has flowed from Democrats, including President Joe Biden. What was that part in the US Constitution about the separation of powers? With the Democrats staring down the barrel of annihilation in the November Congressional mid-term elections, the timing of this leak leaves one to speculate as to the political motivations of the leaker.

Imagine for a moment that a clerk or an official leaked draft High Court judgments in Pell v The Queen, or in Palmer v Western Australia, before these cases were decided. We would be justifiably outraged. It would represent an attack on the institutions of government, on the separation of powers, on our democracy, and, most insidiously, an attack from within, as has happened with the US Supreme Court. That is the issue here, and why the leak should be condemned, whatever your views on abortion.

Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School. The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.

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