May 4, 2022

The end of Roe v. Wade?

The end of Roe v. Wade?

Plus a response from Josh Brahm and a story that matters.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

First time reading? Sign up here. Would you rather listen? You can find our podcast here.

Today's read: Long.

We're covering the leaked Supreme Court opinion, plus some quick hits, a response from Josh Brahm, and a story that matters.  

Justice Samuel Alito, whose opinion on Roe v. Wade leaked to the press on Monday. Photo: JoshEllie1234
Justice Samuel Alito, whose opinion on Roe v. Wade leaked to the press on Monday. Photo: JoshEllie1234

Quick hits.

  1. JD Vance, the former "never-Trump" Republican whom Trump endorsed in April, won his GOP primary in the Ohio Senate race. Vance will face Democratic Rep. Tim Ryan in the general election. (The results)
  2. A record 4.5 million Americans quit their jobs in March. (The numbers)
  3. The European Union unveiled a plan to ban all Russian oil imports today, aiming to phase out Russian crude oil in six months. (The end)
  4. The Biden administration temporarily extended immigrant work permits for as long as 18 months, citing an inability to process them in a timely manner. (The extension)
  5. The SEC says it is adding 20 positions to its enforcement unit overseeing cryptocurrency. (The enforcement)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.

Editor's note:

Today's main topic is perhaps the most contentious issue in modern American politics. We are attempting to combine coverage of a leaked 98-page draft of a Supreme Court opinion, 50 years of abortion debate, and the legal, moral, and political arguments around the issue into one, sub-5,000 word newsletter.

This task is, frankly, impossible (we go well over 5,000 words today). But it isn't the first time we’ve covered abortion, it won't be the last, and we'll do our best to provide a diversity of well-thought out arguments from across the political spectrum. And, of course, I'll give you my most honest assessment. Today, I feel compelled to remind our readers that "my take" is mine alone, and not representative of our entire editorial staff, whose opinions on this and every other issue vary greatly.

I’d also like to briefly note that this issue doesn’t fit cleanly into the right vs. left spectrum. There are a number of high-profile pro-life Democrats and pro-choice Republicans in Congress, and a number of Tangle readers who fit similar profiles. Still, as of publication, the vast majority of the published opinions on this issue have fallen into a right v. left spectrum, so we’ve structured our piece accordingly.

I invite reader feedback and criticism, and am likely to publish some of that feedback (as we’ve done previously) in a standalone newsletter if there is enough of it. All I ask is that your feedback is respectful, thoughtful, and takes the extraordinary task we're trying to tackle into account. If you deliver it with care, you'll improve the odds it is published in a forthcoming newsletter.

Thank you.

— Isaac Saul

Today's topic.

Roe v. Wade. On Monday night, Politico published a bombshell story that included a leaked draft of a majority opinion striking down Roe v. Wade and Planned Parenthood v. Casey, which would effectively end federal protections for abortion rights. The landmark abortion rights ruling is currently being tested in Dobbs v. Jackson Women’s Health Organization, a case about Mississippi's Gestational Age Act, which bans abortions after 15 weeks except in cases of a medical emergency or severe fetal abnormality (there are no exceptions for rape or incest).

In November of 2021, we published a breakdown of the history of abortion rights in the U.S. If you haven't read that piece, I suggest doing that now. Here is a brief summary from that story of what the 1973 Roe v. Wade and the 1992 Planned Parenthood v. Casey rulings did:

However, as with many rights, the court also made it clear that the right to abortion was not unlimited. The court attempted to address the states' interest in protecting the mother's health and "protecting the potentiality of human life," the two issues it viewed as being at odds with each other.

In perhaps the most controversial element of its ruling, the court resolved this tension by creating the trimester framework, declaring the first trimester to be a period of time when a woman's right to abortion was unlimited, a decision solely between her and her doctor. During the second trimester, up until fetal viability, the court argued that the state can create reasonable regulations on the procedure but cannot ban it. But once fetal viability is reached, the time when a fetus can survive outside the mother's womb, the state can protect its interest in potential life and regulate (or even ban) the procedure.

In 1992, the court heard Planned Parenthood vs. Casey, and reaffirmed that states cannot ban abortion before fetal viability, a time period pegged at about 24 weeks of pregnancy. But Casey also did away with the trimester framework, and instead replaced it with an "undue-burden” test, a ruling that opened the door for states to regulate abortion at all stages of pregnancy as long as those regulations did not create an "undue burden" or major obstacle to exercising the right to get a pre-viability abortion.

The opinion leaked on Monday is a full-throated repudiation of the 1973 decision, as well as the 1992 Planned Parenthood v. Casey decision, which together served as the bedrock of abortion rights in America. “We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote in the document. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

After the initial shock that a draft opinion had been leaked, which is unprecedented in Supreme Court history (the initial Roe v. Wade decision in 1973 also leaked, but after the decision was final and not with a draft opinion fully published), Chief Justice John Roberts confirmed on Tuesday that the draft was authentic and the leak would be investigated.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts said in a statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The end of Roe and Casey would leave the matter entirely to state and federal legislators. 13 U.S. states have "trigger laws" that will snap into place if Roe v. Wade is officially struck down this term, and another 10 either have laws on the books or legislation pending that would restrict abortion. In states with strict abortion bans in places like Mississippi (who brought this case) and Texas, there are no exceptions for rape and incest. Other states like Alabama and Tennessee have state constitutions that prohibit protections for abortion rights. Some states, like Georgia, have bans in place after six weeks, while others, like South Dakota, ban abortion in all instances unless the life of the mother is in danger.

Justices typically hold votes immediately after hearing an oral argument, have a member of the majority draft an opinion, and then deliberate and amend that opinion. Oral arguments were heard in this case in December of 2021. Four of the other Republican-appointed justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, voted with Alito in the conference after hearing oral arguments in December, Politico reported. That would be enough votes to strike the rulings down, though the draft of Alito's opinion, which was dated in February, may not be final and votes are known to change during deliberations. Roberts said the leaked draft "does not represent a decision by the Court or the final position of any member on the issues in the case.”

In the 98-page opinion leaked on Monday, Alito argues that the 1973 abortion rights ruling, which concluded that the zones of privacy afforded by the First, Fourth, Ninth and Fourteenth amendments were "broad enough to encompass a woman’s decision whether or not to terminate her pregnancy," was a deeply flawed decision that invented a right mentioned nowhere in the Constitution. Mississippi (and now Alito) have argued that the principle of stare decisis, where the court typically defers to precedent, is weak in this case because the original Roe v. Wade ruling is an interpretation of the Constitution. It also argues that the ruling was "egregiously wrong," a standard that has been used to overturn other precedents in Supreme Court history.

Below, you'll find some arguments from the right and left about this leaked opinion, then my take.

What the right is saying.

  • The right argues that Alito is returning the Court to a fundamental, originalist interpretation of the Constitution.
  • They agree with him that abortion rights do not appear and are not explicitly implied in the Constitution.
  • Some argue that Americans are not supportive of protecting abortion rights.

In City-Journal, John O. McGinnis said Alito considers abortion rights may be based on the word "liberty" in the Fourteenth Amendment, but holds that guarantee protects only “rights deeply rooted in the nation’s history and tradition," a test abortion obviously fails.

"The opinion also identifies the right reading of the Constitution with its meaning as enacted," McGinnis said. "One might quibble that the Due Process Clause, in which the term 'liberty' appears, was meant to trigger only procedural rights, and that any further inquiry into the content of these rights for substantive purposes is thereby superfluous. But Justice Alito is careful to note that much the same analysis of tradition would be mandated by the Fourteenth Amendment’s grant of privileges or immunities to all citizens, which clearly offers a fount of substantive rights. Many scholars have argued that it protects liberties that were deeply rooted at least at the time of enactment and perhaps even rights that become deeply rooted thereafter. But because the right to abortion is not so rooted, that clause can provide no foundation for it.

"The opinion’s careful analysis of text therefore represents not only the overruling of Roe but also a sea change in the appropriate method of reasoning about the Constitution," McGinnis adds. "What was notable about Roe was that it failed to locate the abortion right in the text of the Constitution or even in previous precedent. As law professor John Hart Ely said about Roe, 'it is not constitutional law and gives almost no sense of an obligation to try to be.' (Not surprisingly, Alito quotes Ely.) But Roe was also the culmination of decades of loose thinking about constitutional interpretation, as expressed in cases that ignored the original meaning of text and were driven by what the justices thought of as good policy. If the Dobbs decision follows this draft opinion, then its most important legacy will be the restoration of a more rigorous method of reasoning to the heart of constitutional law. And it represents a triumph for the conservative legal movement in its decades-long fight to restore the original meaning as the centerpiece of constitutional interpretation."

The Wall Street Journal editorial board said the court should affirm the ruling now, to avoid the risk of violence against a justice.

"On the most crucial point—the substance of the law and Constitution—Justice Alito’s opinion is carefully argued and comprehensive," the board wrote. "It grapples directly with the constitutional issues that the Court ignored in Roe and dodged in Planned Parenthood v. Casey. It quotes from the many liberal authorities who criticized the Court’s legal invention. The Court 'simply asserted the result it reached,' as Yale scholar Alexander Bickel put it. The opinion deals exhaustively with the issue of when the Court should overturn a precedent, and why it is justified in this case.

"It also makes clear that Roe is sui generis, and overturning it does not signal a threat to other precedents, such as Griswold on contraception. Expect to hear about a parade of fanciful legal horribles in the coming days," the board added. "As we wrote last week, overturning Roe will not be the end of abortion in America. It would merely return the matter to the states, where abortion law was liberalizing in 1973 before the Court usurped that political and moral debate. If it is overturned, some states will restrict or ban abortion rights while others may make it easier. But this profound moral question will be debated and settled the way it should be in a democracy—by the people."

Alexandra DeSanctis wrote about what America really thinks of abortion.

"If most Americans really do support the Roe status quo, they presumably would elect lawmakers to enact their pro-abortion policy preferences via the democratic process rather than by judicial fiat — but that solution is insufficient for abortion’s most vocal supporters," DeSanctis wrote. "That’s because public opinion on abortion is far more complex than they want to admit, and it cannot be captured by simply asking people if they want Roe overturned. For one thing, surveys suggest that many Americans don’t even know Roe dealt with abortion, as well as that a majority of Americans believe overturning Roe would lead to abortion being illegal across the entire country, a status quo that most Americans don’t support. In reality, if the Court does end up overturning Roe and Casey in a decision similar to the draft leaked last night, each state would be allowed to set its own abortion policy.

"The public lack of knowledge about Roe — and its conflict with actual public opinion on abortion — was captured well by a Fox News poll last September, which found that 65 percent of Americans said they oppose reversing Roe. But, absurdly, the same survey found that respondents were perfectly split on whether abortion should be legal, tied at 49 percent," she added. "A substantial number of Americans, in other words, both want abortion to be illegal and want to preserve jurisprudence making it essentially impossible to prohibit abortion. This outcome was possible only because a sizable percentage of the population doesn’t know that abortion can’t be regulated at all until Roe is gone."

What the left is saying.

  • The left warns this ruling will be disastrous for women, especially low-income women and victims of sexual assault.
  • Some say Alito's ruling creates justification for overturning Roe that could apply to many other rights.
  • Others criticize the anti-abortion movement for not helping support children who are actually born.

In The New York Times, Roxane Gay, who was sexually assaulted when she was 12, said the trauma she endured "would have only been compounded by a forced pregnancy."

"We should not live in a world where sexual violence exists, but we do. Given that unfortunate reality, we should not live in a world where someone who is raped is forced to carry a pregnancy to term because a minority of Americans believe the unborn are more important than the people who give birth to them. And we should defend abortion access not only in cases of sexual violence," Gay wrote. "All those who want an abortion should be able to avail themselves of that medical procedure. Their reasons are no one’s business. People should not have to demonstrate their virtue to justify a personal decision about how to handle a life-altering circumstance.

"We should not live in a country where bodily autonomy can be granted or taken away by nine political appointees, most of whom are men and cannot become pregnant. Any civil right contingent upon political whims is not actually a civil right," Gay added. "Without the right to abortion, women are forced to make terrible choices. These burdens disproportionately fall upon poor and working-class women without the means to travel across state lines to receive the care they need. Despite promises from the anti-abortion movement to support pregnant women and children, the 'pro-life' lobby appears to be invested only in the unborn. The same mostly male politicians who oppose abortion so often do everything in their power to oppose rights to paid parental leave, subsidized child care, single-payer health care or any kind of social safety net that could improve family life."

In Slate, Mark Joseph Stern called the ruling "jaw dropping" and "unprecedented."

"Alito’s Dobbs opinion does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution," Stern wrote. "He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans. And he disavows the entire line of jurisprudence upon which Roe rests: the existence of 'unenumerated rights' that safeguard individual autonomy from state invasion. Alito asserts that any such right must be 'deeply rooted' in the nation’s history and tradition, and access to abortion has no such roots.

"The obvious problem with this analysis is that the Supreme Court has identified plenty of 'unenumerated rights' that lack deep roots in American history," Stern said. "Most recently, the court established the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their 'appeals to a broader right to autonomy' as a slippery slope. The 'high level of generality' in their reasoning, he wrote, could 'license fundamental rights to illicit drug use, prostitution, and the like.' It is difficult to square this opprobrium toward Lawrence and Obergefell with Alito’s later assurance that his decision 'should not be understood to cast doubt on precedents that do not concern abortion.' This unreasoned disclaimer is not worth much on the heels of 62 pages shredding dozens of precedents over a half-century."

In The Washington Post, Michele L. Norris asked where anti-abortion warriors are for "babies who will be born under duress."

"This is the false piety hidden in the Republican Party’s zeal to roll back a woman’s right to choose," Norris wrote. "The sanctity of human life is all-important right up to the point when that flesh-and-bone child enters a world where programs designed to support women, the poor or households teetering toward economic ruin are being scaled back by a party that claims to be about family values. Family, for the radicalized GOP, is too often an inelastic framework built around powerful men, subordinate women, and children who will learn how to hurl themselves forward in life, even if there’s no money, few educational opportunities, no job prospects in their future, no proverbial boots with magical straps to lift their fortunes toward the sun.

"The pro-life warriors — including legislators who have been rolling back abortion rights at the state level — are silent when it comes to fighting for even the simple principle of enhanced child support enforcement so the men who father these children can provide for the life they create," she said. "Let’s not forget that women who seek abortions are disproportionately poor or economically insecure. A 2014 study found that 3 in 4 women who terminate their pregnancies are low-income and almost 50 percent of those women live below the poverty level. Fifty-five percent are unmarried or do not live with the father... A further irony is that many of the states that have enacted the most restrictive bans on abortion also spend the least money to provide health and economic benefits for expecting mothers and children once they’re born."

My take.

I'd like to get something out of the way so I can tell you honestly what I'm seeing and feeling: The origins of Roe v. Wade, and the right to abortion granted through that ruling, were always tenuous. Plenty of liberal legal icons, including Ruth Bader Ginsburg, have long warned that this day would come because the rationale in Roe was flimsy. Ginsburg also expressed unequivocally that women had the right to abortion, but that right was granted through the equal protection clause, not through some combination of rights to privacy or liberty. From a purely legal standpoint, it is a fair criticism to describe Roe as a contested and even wrong ruling.

But that does not make the argument Alito presented, or the decision to strike it down wholesale, any more reasonable. And it certainly does not mean it is a good moment for our country.

The reality of what this ruling will do, if it stands as written, should be front and center in every discussion: Across the U.S., at least a dozen states will immediately ban abortion, many of them even in the most extreme cases of rape, incest, or within just a few weeks of pregnancy. It is important to say plainly and crudely what this means: A 13-year-old girl in Mississippi raped by her family member will have no choice but to carry her pregnancy to term. This is not an exaggeration or fear-mongering, it is the result of Mississippi's laws and this ruling, as written. 18 million women alive in the U.S. today have experienced rape, and three million have experienced rape or rape related pregnancy in their lifetime.

Women in the states where abortion will be or is most likely to be banned — states like Alabama, Texas, Tennessee, and Mississippi — are already the worst states to have a baby in America when measured for things like access to health care and infant mortality rates. Mississippi, which has brought this challenge to Roe, ranks dead last in preterm births, neonatal mortality and overall child well-being.

As with much else in America, the poorest will suffer the most, while wealthier families (who are more likely to be living in states that protect abortion rights) will likely be able to cross state lines and/or pay for expensive, prohibited abortions, or acquire the safe and popular abortion pills (some of which are already being banned) via online marketplaces.

In pure moral terms, the idea that banning abortion is a black and white moral good, or a net positive for children, has never been convincing to me. As I've written here before, there's no way to reasonably put a fertilized egg’s consciousness, sense of pain, societal value, personality, self-determination or worth on the same playing field as a newborn baby, let alone a pregnant woman. And I've simply never seen, heard or read a compelling argument to the contrary (trust me, I've looked long and hard).

Once we accept that there is that difference, then we are accepting that there is a gradient of personhood, and that we are responsible for the incredibly challenging moral question of determining where in that gradient we want to begin giving explicit legal protections to a fetus that may take away the free will and choice of a pregnant woman. I do not propose that this is an easy question. But I do propose that Roe and Casey, which gave families in the early stages of pregnancy the right to make that decision without government intervention, are morally sound and in line with the views not just of Americans but the Western world at large.

Again, it is important to speak directly about the practical implications of this ruling: We live at a time when a woman’s risk of dying from childbirth is far higher than the risk of dying from having an abortion. As crude as it is to admit, forcing women to carry unwanted pregnancies to term won't just result in more women dying during childbirth, it will also force more unwanted pregnancies to term. About 135,000 children are adopted every year, though just 15% are “voluntarily relinquished” American babies. We can argue that the legislature should lead the way protecting abortion rights, but even if they acted in a timely fashion, which they’ve proven incapable of or unwilling to do, it would do little to change the immediate impact.

Statistically, the children who aren't adopted will overwhelmingly be born into poverty or end up in our broken foster care system. The typical abortion patient is already a mother, poor, unmarried, in her late 20s, and in the first six weeks of pregnancy. Even at a moment when women have enjoyed access to legal abortion for 50 years, 16% of all children in America are living in poverty, 400,000 are living in foster care, and 117,000 of those are waiting to be adopted. And that's after five decades of abortion being protected. That is to say nothing of the mothers who are already struggling to take care of one or more children and seek out an abortion in an act of love for the kids already in their care.

Again, in practical terms, terminating a pregnancy does not simply mean the loss of a singular life. Allowing planned pregnancies to flourish is one of the best tools we have to produce stable families and healthy children, a goal the pro-life movement says it is interested in. In Ursula Le Guin's essay "What It Was Like," she writes about getting an illegal abortion before Roe v. Wade, painfully explaining that terminating a pregnancy in her early twenties is the only reason she ended up having three children she was ready and able to raise:

What was it like, if you were planning to go to graduate school and get a degree and earn a living so you could support yourself and do the work you loved—what it was like to be a senior at Radcliffe and pregnant and if you bore this child, this child which the law demanded you bear and would then call “unlawful,” “illegitimate,” this child whose father denied it … What was it like? […]

It’s like this: if I had dropped out of college, thrown away my education, depended on my parents … if I had done all that, which is what the anti-abortion people want me to have done, I would have borne a child for them, … the authorities, the theorists, the fundamentalists; I would have borne a child for them, their child.

But I would not have born my own first child, or second child, or third child. My children. The life of that fetus would have prevented, would have aborted, three other fetuses … the three wanted children, the three I had with my husband—whom, if I had not aborted the unwanted one, I would never have met … I would have been an “unwed mother” of a three-year-old in California, without work, with half an education, living off her parents…

Putting the morality argument aside for a moment, the legal implications of the ruling are both infuriating and frightening. The crux of Alito's argument is that the Constitution says nothing about a right to abortion and that such a right "was entirely unknown to American law" in the 20th century. Which, hey, I give him credit for stating the obvious. The Constitution was written in the 1700s by a group of wealthy men with no understanding of modern day science and very little interest in the rights of women. It wasn't until 1920 that women in our country even had the right to vote, so it shouldn't be a surprise to Alito that the Constitution did not cut out a framework for them to make decisions about family planning.

Obviously, our country has evolved over time. And the beauty of what the founders did, their eternal brilliance, the brilliance I am grateful for every day, is that the very words of the Constitution implied a whole slew of rights they surely didn't intend. It feels almost too obvious to be worth stating, but this is how we ended slavery and created Women's suffrage, the Civil Rights movement, and the legal right for gay Americans to marry, even though the founders explicitly delivered none of those rights to Americans when they drafted our Constitution. It’s the same reason why Brown v. Board of Education, which is also specious law, has not been struck down. Even the great conservative justice Antonin Scalia did not go that far.

In codifying this new "Alito test" for what is and isn't a right — what must be explicitly foretold 250 years ago — the justice has created a whole slew of frightening propositions. Not only has he further eroded stare decisis, the court's commitment to precedent that stabilizes many of our currently understood rights and laws, he has also functionally undermined the unenumerated privacy rights we all view as foundational to America. His same logic, no matter how glibly he tries to wave it away, could be used (relevantly) to undo contraceptive rights, rights to interracial marriage, rights to gay marriage (supported by 70% of Americans) and others.

Alito says in his opinion that abortion is unique compared to these other rights in question because there is a fetal life involved. But such a rationale has no Constitutional or historical basis. It is a totally inadequate way to brush off the threat such a ruling would be to the many unenumerated rights we now enjoy. Again, in practical terms, Alito is undermining these rulings while also waving away the implications with an invented standard. The only note of comfort is that the Court rarely strays too far from public opinion.

What Roe v. Wade effectively did was preserve the right for women to get first trimester abortions, something that — despite the admittedly messy polling on abortion — is supported by the overwhelming majority of Americans. It was a ruling that came down on a 7-2 vote and has been reaffirmed, to varying degrees, in every related SCOTUS case since. As a result, 92.2% of all documented abortions occur 13 weeks or fewer into the gestation period, the timeframe that is widely accepted in American society.

Of course, the Supreme Court's job is not to be democratic or necessarily even moral, which is another of the fallacies in the left's current posture. On the contrary, the Supreme Court is meant to be a check on majoritarianism. Though it very rarely bucks overwhelming public opinion, it is supposed to live in a vacuum from the democratic process — it is supposed to be a check on the democratic process to preserve the rights guaranteed in our Constitution. That is what it did in 1973 when our democracy had created laws taking away the right to abortion, and it ruled in Roe v. Wade that such laws were an infringement of a woman's right to liberty and privacy, which extended to their right to make decisions about a pregnancy.

But now the incentive for Congress to write federal law codifying the right to an abortion has never been higher. This is why, in the most basic sense, if you are interested in preserving the right to abortion, you should now channel your anger toward the legislature.

So, is this really it? Is this really the end of Roe v. Wade and Planned Parenthood v. Casey?

Simply put: We don't know. The draft opinion that leaked has been rightly described as "pure, unadulterated Alito-ism," which is another way of saying "unedited." It seems likely to me that the language will soften in the eventual ruling, and the way these opinions are written can have a serious impact on how the lower courts and future Supreme Courts interpret them. The vote changing on a sweeping reversal of Roe and Casey seems much less likely, but if Alito digs in and refuses to alter his language after this leak, I could see a world where Kavanaugh or Barrett jump ship.

Which, of course, raises the question of who leaked it. Like most people, my initial instinct was that it was a clerk for a liberal justice who wanted to raise the alarm, create backlash, and perhaps even pressure the justices into changing their votes. Maybe it was even a rallying call for the midterm elections. But there are parts of that story that don't make any sense.

For starters, any clerk or liberal justice would know the practical impact of this leak, which is what we have now: The story is about the leak, it hands ammo to the opposition, and instead of buying time to move the conservative justices, it may actually lock them into the vote, because they don't want it to appear as if they folded, and Alito won't want to appear as if he agreed to soften his language from his original draft.

In other words, a conservative justice or clerk could just as plausibly have leaked it to lock in the votes and the opinion as-is. We now know, for instance, that Politico had this story for several days before publishing it. We also know that a few days ago, the Wall Street Journal posted a very conspicuous op-ed suggesting there was a "ferocious lobbying campaign" to sway Kavanaugh and Barrett, and the board "guessed” that Alito was drafting that opinion. Ruth Marcus of The Washington Post wondered aloud if someone at the editorial board might have been leaked the document as well.

Truthfully, I have no idea. Both scenarios seem plausible. I don't think we will know for some time. I do know the leak will damage the court even further, and damage whatever remaining trust the justices had with each other, and that whoever did it — justice, clerk, intern — shouldn't be allowed near a courtroom again. It’s an absolute breach of the court’s confidentiality, and one that can’t stand without serious consequences.

Despite writing repeatedly that this was coming, and even including it in my 19 predictions about the future, it still felt like a political earthquake — one that isn’t just going to reshape life immediately for millions of people, but also reshape the political battles for at least the next two years.

As for what's next, it's anyone's guess. Just as with the leak, I'm also unconvinced this will benefit Republicans or Democrats in the midterms and beyond. Many people believe this ruling will ramp up Democratic turnout in midterms that usually go badly for the party in power. I believe feelings on abortion are much more malleable than we think, and I could just as easily see a world where anti-abortion Americans turn out in droves for their first real chance to legislate abortion out of American life.

What I am sure you can expect is that Republicans and the anti-abortion movement will aim for a trifecta — control of the White House, Senate and House — and then try to ban abortion federally in 2024. I do not see any other conceivable outcome given that they truly believe abortion is the daily homicide of children. I presume, based on this draft ruling, that the current Supreme Court would be amenable to this outcome.

Finally, a note on actually preventing abortions: When the Roe v. Wade ruling came down, rates of abortion were nearly triple what they are now and women were regularly dying from the procedure even in the best medical care. We are fairly certain how to reduce the number of abortions in America: popularize secular sexual education, make birth control cheap and effective, and improve access to women's health care. This is not a complicated truth — it's logically straightforward, and observable throughout recent history and across the country.

Like most Americans, I have strong feelings about abortion rights. I've referenced them throughout my time writing this newsletter. Given my own biases, I've gone to great lengths to elevate other voices. In pieces about the history of abortion rights or the potential political implications of overturning Roe v. Wade, I've kept my personal views to a minimum. Additionally, I've done my best to give space to leaders of anti-abortion institutions, pro-life women, one of the men behind the abortion ban in Texas, or you, the readers.

I do this because, frankly, I respect many people in the anti-abortion and pro-life movements, despite disagreeing with them. I love many of them as friends, family or colleagues. I believe many millions of them are acting out of genuine moral clarity held in the belief that protecting the unborn is a just act in the eyes of a higher power or any reasonable secular moralism.

But today I have to be straightforward, and I hope — given our past publications — you allow me the space to make my point: I find this ruling horrifying. By all measures, I think the stated goal to protect children, to sanctify life, to legitimize the law, is entirely undermined by the ruling itself, and will have grave consequences for the country and its most vulnerable citizens.

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Josh's response.

Yesterday, I published a response to anti-abortion activist Josh Brahm's argument in Tangle. Josh responded on his own website, the Equal Rights Institute blog, and addressed the "accidental but major strawman" of my argument that he said my response included. It was a thoughtful counterpoint, so I promised him I'd share it in Tangle. You can read his response here.

A story that matters.

In India and Pakistan, an unprecedented heat wave is causing school closures, destroying crops and raising alarm about the habitability of one of the world's most populous regions. The average maximum temperatures for northwest and central India in April were 96.6 and 100 degrees Fahrenheit, the highest in 122 years of keeping records. In New Delhi, a metro area of 26 million people, there were seven consecutive days of temperatures above 104 degrees. Officials warned residents to stay indoors and keep hydrated. In Pakistan, one official said "this is the first time in decades that Pakistan is experiencing what many call a 'spring-less year." More than a billion people across the two countries, as well as the crops they produce, are at risk from the longer and more intense heatwaves. CNN has the story.


  • 619,591. The number of abortions reported to the CDC in 2018.
  • 30 per 1,000. In 1980, the rate of abortions in the United States for women aged 15-44.
  • 11.3 per 1,000. In 2018, the rate of abortions in the United States for women aged 15-44.
  • 12 weeks. In many European and Asian countries, the typical time frame when restrictions on abortion kick in.
  • 21 weeks. The gestation period after which James Elgin Gill was born in Ottawa in 1987, the most premature baby in world history.  
  • 15. The number of states with laws protecting the right to abortion.

Have a nice day.

An international team of researchers says it has discovered the DNA mutation that causes the autoimmune disease lupus. The discovery is the first step toward developing a treatment for the chronic disease, which causes inflammation in joints and organs, fatigue, and mobility issues. Some 1.5 million Americans and five million people worldwide are known to have a form of lupus. "By confirming a causal link between the gene mutation and the disease, we can start to search for more effective treatments," Professor Nan Shen said. SciTechDaily has the story.

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