The Supreme Court Appears Set to Overturn Roe; Reaction Fierce

Photo: Saul Loeb—AFP/Getty Images

By David M. Greenwald
Executive Editor

Washington, DC – While observers long believed that with a 6-3 conservative majority on the Court, the US Supreme Court could overturn the seminal case, Roe v. Wade, a leak of a draft by Politico Monday night was a political tsunami that at least has the potential to change the entire dynamics of the coming election.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” the draft dated February 10 said.  “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

The reaction showed that the issue could be a potential tidal wave in the political landscape.

Governor Newsom, Senate Leader Toni Atkins, Speaker Anthony Rendon: “California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased. We will fight. California is proposing an amendment to enshrine the right to choose in our state constitution so that there is no doubt as to the right to abortion in this state. We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.”

Gavin Newsom: “This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years. This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away.”

Rick Hasen, University of California, Irvine: “One thing to keep in mind here: some may say this SCOTUS leak benefits those who oppose overturning Roe. But it actually helps the majority that overturns by (1) deflecting commentary to breach of court secrecy norms and (2) lessening the blow by setting expectations.” (Twitter)

Laurence Tribe, Harvard Law School: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.” (Twitter)

Daniel Epps, Washington University at St. Louis School of Law: “My guess is there’s about to be a serious inquisition at the Court as the Chief tries to figure out who leaked. Worth noting, though, that draft majority opinions are circulated before Justices have 100% agreed to what they contain. There would have been an initial vote but a lot could be uncertain until much later in the process. One thing that’s weird is that the draft is dated from February. That suggests it may have been the first circulated draft. Surely there have been multiple new versions of the opinion circulated in the building since Feb. So why is the February version leaking now?” (Twitter)

Steve Vladeck, University of Texas School of Law: “This is an earthquake—for what it portends for the future not only of Roe, but of *all* implied fundamental rights, and for the stunning breach of the court’s norms of confidentiality. And whatever you think of the leak, the former has *everything* to do with the latter.” (Twitter)

Anthony Romero, Executive Director, American Civil Liberties Union: “If the Supreme Court does indeed issue a majority opinion along the lines of the leaked draft authored by Justice Alito, the shift in the tectonic plates of abortion rights will be as significant as any opinion the Court has ever issued. It would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions of women for over 50 years. The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding. However the decision ultimately comes down, the ACLU will never stop fighting for a person’s right to choose when and if to have a child.” (Statement)

Jonathan Turley, George Washington University Law School: “The most likely motivation is obviously to pressure the court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing.” (Twitter)

California Legislative Women’s Caucus Chair Assemblywoman Cristina Garcia (D-Bell Gardens) and Vice Chair Senator Nancy Skinner (D-Berkeley):

“If SCOTUS adopts this deplorable draft decision and overturns Roe, it will not stop abortions but rather lead to unsafe and deadly abortions, especially for our most marginalized communities. Lack of access across the United States disproportionately affects communities of color, low-income communities, trans, and other marginalized communities. This fight is not just about a person’s right to control their own destiny, but about ensuring our most vulnerable community members have equal access. It’s about equity. This will be the first time my generation will lose a fundamental right — the right to choose, especially if you’re Black, Brown, LGBTQ, immigrant, or low-income,” said Assemblymember Garcia.

“We saw it coming. California is prepared to be a refuge state for women here and across this nation. The Legislative Women’s Caucus stands with Senate Pro Tem Atkins, Assembly Speaker Rendon and Governor Newsom in support of a constitutional amendment to enshrine reproductive rights for all in California. We will be the national beacon for reproductive justice,” Assemblymember Garcia added.

“Unlike women before me, I grew up without having to face the choice of a back-alley abortion. I am outraged to learn that what we have feared is all too likely to come true: Millions of Americans will lose their legal right to make the very personal choice of whether to continue a pregnancy, no matter what the circumstance. Facing an unwanted and unplanned for pregnancy, I had my abortion legally and in a safe medical setting. If this leak is correct and Roe v. Wade is overturned, the Supreme Court will not prevent abortions, instead they will unleash unsafe and often deadly abortions. Decades of advocacy, hard work, and sacrifices made for the freedom to choose what happens to our own bodies will be completely undone. The Legislative Women’s Caucus and California will vigorously uphold reproductive freedom for all who live here and who come here,” said Senator Skinner.

Senator Scott Wiener: “California unequivocally stands for the right to an abortion, no matter what the right-wing zealots on the Supreme Court say. We will fight hard to expand abortion access, here and in other states.”

California Young Democrats President Diane Le and CYD Womxn’s Caucus chair Megan Imperial:

“Today’s news of the leaked plans by the Supreme Court to overturn Roe v. Wade is yet another reminder of the atrocious and sickening reality that is the GOP and their agenda. Make no mistake — striking down abortion rights is neither popular, logical, or brave. It is simply evil. Conservatives have plotted for years to overturn rights that benefit women, birthing people, survivors, and disenfranchised communities. Today reminds us that we are always one decision away from losing our rights, and why we must never loosen our grip in the fight for equality, justice, and the right to our bodies.

“We as Californians are fortunate to live in a state where many of our legislators are champions of reproductive freedoms and rights. We know that because of the leadership of our Democratic majority in California, access to abortion and reproductive freedoms is currently safe and legal in our state. We cannot and will not rest easy until we vote out every and any legislator who undermines women’s and birthing people’s rights, and we will not stop until Congress acts to once again protect women’s and birthing people’s right to their own bodies.

“When the right to our own bodies is under attack, apathy cannot be an option. So we choose to show our force and speak up. This Midterms, we will mobilize like never before, we will protect our Democratic majority in Congress, we will fight for change, and we will not stop until Roe v. Wade is codified into law.”

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Keith Olson

    This begs the question, which leftist judge or judge’s staff leaked the information which is unprecedented in history as far as retaining trust among the judges.  Sotomayer or Kagan is my guess.

      1. Keith Olson

        I agree, but still unprecedented.  Most likely a clerk of Sotomayer or Kagan in order to put pressure on the other judges.  It’s just Alito’s draft opinion and 5 judges would still have to sign on to it which would leave it to the states to ultimately decide.  


        1. David Greenwald

          When Woodward wrote the Brethren back in the late 70s, it was clerks who were his sources. But I agree, it is not only unprecedented but very relevant.

    1. Don Shor

      The leak is irrelevant, Keith. The focus of the hard right on that topic is an attempt at distracting from the disastrous consequences of this decision.

      1. Keith Olson

        The leak is relevant Don.  It shakes the foundation of trust that has been the rule and code for the SCOTUS .  The hard left is attempting to intimidate the conservative judges before the ruling.

          1. David Greenwald

            Not illegal, but according to a number of media accounts, if discovered, the clerk would be a grave professional jeopardy

  2. Ron Glick

    Won’t change a thing in California where this was settled by an initiative passed long ago.

    For the rest of the country it moves the issue from the judicial to the legislative branch.

    It does raise the question as to who is more conservative, the American right or the Taliban?

      1. Tia Will

        If the goal is forced control of the body of an individual by the state, what difference does it make if you call the group in power American right, or Taliban. The goal is the same.

  3. Bill Marshall

    Is it illegal?

    Slippery slope… legal/illegal… moral/immoral… ethical/unethical… right/wrong?

    Same dilemmas for “leaks” and ‘abortion on demand’ (or whim)… slippery slopes… but they’re there…

    One sign in the picture posted says “abortion = health”… for whom?  When does life begin?  Conception? Heart beat?  Is abortion fine, a constitutional right for a woman to end the pregnancy days before birth with a ‘partial birth abortion’, when the child/human/’product of conception’/’invasive tissue’ would be viable if delivered?  Is it a ‘constitutional right’, or premeditated murder?  Why isn’t it a ‘right’ retroactively if the child is deformed, challenged, a ‘nuisance’, a burden, or ‘inconvenient’…

    There are situations where a “pro-life” decision could be to abort a pregnancy where both the mother and child were @ great risk of dying if the pregnancy continued… the woman might choose to conceive again… a “pro-choice” decision could include ending the life of a child when it turns out it is a “brat” (or a Republican or a Democrat, or a Green…) …

    All depends on how one views, “legal/illegal… moral/immoral… ethical/unethical… right/wrong”… yeah “rocket science”… and then some… no answer here, it’s just, ‘I wonder’…

  4. Ron Glick

    I guess it turns out that those who argued Obama would impose Sharia Law were actually telegraphing what the Conservatives would do when they got the power.

    1. David Greenwald

      For 50 years, the left has been sleeping on the SCOTUS, taking it for granted while the right has learned the lesson from the 60s and flipped the script. Over that time, the Presidency has been controlled by both parties almost evenly while the vast majority of the appointments have been placed by Republicans. That’s not an accident. The left too often sleeps during off season elections, that will be fatal this time.

      1. Keith Olson

        The left too often sleeps during off season elections, that will be fatal this time.

        Biden and Kamala’s approval ratings are in the tank.  No one has any confidence in either one of them.  Inflation is soaring, gas prices have doubled since Biden took office, the border is out of control, the Dow is in correction and the Nasdaq is in a bear market, woke policies abound, etc…

        In other words things are going to schit.  The left is looking, hoping something will galvanize them.  Will this be it?  I tend to doubt it.

        It’s going to be ugly for Democrats in November.


        1. David Greenwald

          In 2018, the right used the Kavanaugh confirmation as a rallying point. They were able to salvage the Senate, which became a huge deal in 2020. The left will try to do the same here, they will fail.

        2. Bill Marshall

          And Trumpy Bear will be our Saviour… yeah, right… very “right”, except it is not about the nation, it’s about him  Him… he is not a “conservative”, except conserving, building his  His wealth, ego, and “media legend”…

          The far right and far left will make it very ugly in November… no apparent ‘winners’ for most folk…

          And, of course, November elections are corrupt unless the ‘deeply Red’, conservatives, “take the field” then, right? Very right?… after all the person who claims ‘he was robbed’ by corruption of the “lefties” in 2020…right? Yeah, right…

        3. Ron Oertel

          Keith:  The left is looking, hoping something will galvanize them.  Will this be it?  I tend to doubt it.

          David:  The left will try to do the same here, they will fail.

          Me:  Yeap.

          A rare, “triple-agreement”.  Is Pluto lining up with Neptune and Saturn, or something? (I’m trying to avoid naming that planet that begins with a “U”, as it’s often the “butt” of jokes.)

    2. Alan Miller

      I guess it turns out that those who argued Obama would impose Sharia Law were actually telegraphing what the Conservatives would do when they got the power.

      That could be seen as offensive, as Sharia Law is not the source of this.

  5. Alan Miller

    California is prepared to be a refuge state for women here and across this nation.

    Whether California did or did not have a housing crisis is arguable.  We will certainly have one now 😐

  6. Edgar Wai

    On Morality of Abortion

    The relationship between a pregnant person and the unborn is generalized to that between a Provider (A) that contains a Receiver (B) within its body. The ability of the receiver to sustain its own life is one parameter of the generalization.

    If B cannot sustain its life without taking resources from A, then B is considered a Dependent of A. If B is in a state where it cannot exit A by itself, B is considered without autonomy.
    If B is in a state where it cannot decide to exit A, B is considered incapable of free will.

    If A is not allowed to stop nurturing B, then A’s autonomy is violated. In this conclusion, it does not matter whether B is capable of autonomy and free will. This means:

    Even if B is capable of autonomy and free will, B does not have a right to take resources from A without A’s ongoing agreement. If B has free will, B only has a right to exit the custody of A if A does not want to take care of it.

    Forcing people to forgive or punish each other are both illegal for violating autonomy.

    What does B want to do?

    If B has free will and prefers to exit A and technology is available to do so within acceptable cost to A, then those who prevent B from exiting are violating B’s free will. If B has free will and prefers to stay in A even if it would die, then those who force B to exit are violating B’s free will. In both cases, those who assume B’s intention are at risk of violating B’s free will. Without assuming B’s preference, the only entity with standing to decide is A, the provider.

    Who decides what accommodation is acceptable?

    If the free will of B is known and it prefers to exit A, what is the acceptable cost to A?

    In the principle of reciprocation, the acceptable cost is not a subject to be decided by others, but the cost the A declares to accept is the cost that others are morally compelled to bear. This means that:

    If A declares that there is no cost it would bear to fulfill B’s free will (wish) to exit A (to have a chance to stay alive), then it is within reciprocated moral to bear no cost to save A’s life when A’s life is in danger. ((If you are not willing to break a sweat to save someone else’s life, then others don’t need to break a sweat to save yours.))

    In reciprocation, A’s decision to not save B makes it legal for others to not save A. It does not make it illegal for others to save A anyway.

    Retroactive reciprocation is a variant that makes it legal to reflect A’s decision to treat others to how A was treated in the past. If A had received life-saving help in the past but was never in a situation where A’s decision could save another life, then A’s decision on how far it would go to save lives would retroactively limit the amount of help it should receive in the past. This translates to A’s decision to not save B could make it legal for society to place debt on A for having received help to save A’s life. At the same time, it is not illegal to forgive A’s debt even if A only chooses to be saved but chooses not to save anyone else.

    Is it legal to attack A if A doesn’t provide for B?

    This situation is generally analogous to that where B is in a coma and A wants to pull the plug. The willingness of A to bear the cost of letting B switch providers is reflected in reciprocation. If C forces A to provide for B, then it is reciprocatively legal for A to force C to provide for B. If C does not have the means to provide for B, then C does not have a standing for the negotiation.

    In the case of B being in a coma, C has no right to stop A from providing for B unless C could provide for B instead. Otherwise, C forcing A to provide for B is an illegal attack on A. On the other hand, A has no right to stop providing for B if A could reasonably know that C is willing to provide for B instead.

    In the case where B is an unborn in a womb, in the current technology, A could claim that there is no reasonable alternative for anyone to provide for B. Therefore, no one has a right to stop A when A decides to stop providing for B. However, if the technology exists for B to be transferred to another provider C, then A’s decision to stop providing for B becomes an avoidable attack on B, and C may counterattack A to save B. When C saves B, C assumes all providing costs for B. A does not need to pay for the cost of C providing for B. If C cannot afford to provide for B, then C should not have attacked or have threatened to attack A when A chooses not to provide for B.

    What if A is not just trying to pull the plug, but to kill B?

    In the same context where there is no reasonable alternative provider (C), the manner A decides to stop providing for B can be reciprocated. If A decides to not supply for B and chooses a humane way (use quick poison instead of starvation), then it is morally illegal for others to end A’s life in inhumane ways in a similar situation when a humane way is available.

    Can A pull the plug unannounced?

    Even in the same context where there is no reasonable alternative provider (C), A is at risk of being guilty of deception when they act negatively toward another being unannounced. Privacy law does not cover situations when a person conceals information about bringing another person into harm. When it is widely accepted that no one else could save B except A, then it could be common to forgive A for not announcing, but A would not have a default right to conceal.

    Does the origin of B matter?

    The origin of B determines whether A could claim reimbursement for providing for B and the cost of ending the care. For example, if A wakes up and finds B in a coma and is connected to its house, then A has a right to find out who did it and claim reimbursement. However, as long as C doesn’t exist, the situation remains the same: A may pull the plug on B even if A could personally afford to provide for B. A’s choice is handled by reciprocation. ((If A lets B die while A can afford to keep B alive, then others may also let A die when they can afford to keep A alive.))


    By generalizing the relationship in abortion, you may see that the debate on when an unborn is a life with free will is irrelevant. Even if the dependent being is a fully grown human being, the provider may choose to end its life as long as the dependent being does not exercise its free will to exit the dependency and get another provider. Anyone who is not volunteering as an alternate provider for the dependent has no right to stop the current provider from ending the dependent’s life.

    However, the decision by the provider to stop support is not without consequences. The provider is subjected to reciprocation, making it legal for others to treat them in the same way in a similar situation, although it is also legal for each person to choose to forgive them and treat them better than how they have treated others.

      1. Edgar Wai

        Choice voting secures minority autonomy in deciding about public/shared resource.

        In the context of abortion, the unborn is not public resource. Therefore there is no jurisdiction to apply choice voting.

        On the other hand, if we are talking about an alien dragon egg housed in a public incubator, then choice voting would apply in deciding how much public resource that dragon egg should receive.

        1. Edgar Wai

          In a scenario where humanity finds an alien dragon egg (without knowing where it comes from), the decision on what to do with it can be settled by choice democracy.

          This is the same situation as a community finding an abandoned baby at a public fire station. Deciding by majority rule means that if 51% of the people want the baby killed, the other 49% are not allowed to save it even if they are willing to take care of it out of pocket.

          In Choice Democracy, as long as one person is willing and capable of taking care of the baby, that person can have custody of the abandoned baby even if everyone else opposes it.

        2. Ron Oertel

          I think I’m getting more than I expected as a response, regarding this exchange.

          It certainly seems like “choice democracy” is a preferable alternative in your example.  🙂

          Though getting back to the dragon egg, can’t help but think of Alien, Invasion of the Body Snatchers, etc. I’d suggest taking precautions, at least.

      1. Edgar Wai

        Reciprocation is different from transitivity.

        Reciprocation means:

        If A harms other, then anyone may harm A.

        Transitivity means:

        If A has been harmed, then A has a right to harm anyone including those who did not harm A.

        I also didn’t refer to abortion as a right. If I say abortion is a right, I would mean that a person may choose abortion even when there is harmless technology to transfer the unborn to someone else’s care.

        In that terminology, abortion is not a right.

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