'It’s an absolutely seismic event': Western Pa. legal experts shocked by Supreme Court leak

Legal experts in the Pittsburgh region view the leaked U.S. Supreme Court draft opinion that could overturn Roe v. Wade as unprecedented — in its substance, in the potential impact it could have on other privacy rights and in the very leaking itself.

While there have been leaks of information and hints at how cases would be decided in the past, none has reached the level of the draft opinion in the Mississippi abortion ban case — which seeks to ban abortion after 15 weeks — obtained by Politico and published on Monday.

Written by Justice Samuel Alito and circulated among members of the court in February, the draft opinion would overturn Roe, which has been in effect since 1973, and return the issue of abortion rights to the states.

“Abortion presents a profound moral question,” the draft opinion said. “The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and [Planned Parenthood v.] Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

On Tuesday, Chief Justice John Roberts confirmed the draft opinion’s authenticity but said it is not final. He issued a statement criticizing the leak and ordered the marshal of the court to conduct an investigation.

“The leak is unconscionable,” said Bruce Ledewitz, a constitutional law scholar at Duquesne University. “The court needs confidentiality, and the fact this was not respected is a terrible blow to the rule of law and integrity of the court.”

When the U.S. Supreme Court decided Roe v. Wade in 1973, it found that the right for a woman to obtain an abortion was guaranteed by the liberty clause of the 14th Amendment. The court, in a 7-2 opinion that included five Republican appointees, found that a woman had the right to bodily autonomy and integrity.

“They interpreted liberty to mean a privacy interest,” said University of Pittsburgh constitutional law professor Jerry Dickinson. “You have the right to control your own body, and private, intimate decisions are better left to individuals than the political majority.”

The draft opinion leaked on Monday, Dickinson said, “wipes that out completely.”

Alito, in the draft, called Roe “egregiously wrong from the start.

“Its reasoning was exceptionally weak, and the decision has had damaging consequences,” he wrote. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

If the draft opinion is issued as it stands, Dickinson said, it would be unprecedented.

“The Supreme Court has never overturned or reversed a long-standing, well-established fundamental right,” he said. “Here, you have the Supreme Court literally taking away, stripping a right away from the individual.

“It’s unprecedented, and it’s extremely unsettling.”

Dickinson, a Democrat who is running for Congress in this month’s primary, also said that it calls into question the court’s own legitimacy.

Harry Litman, a former law clerk for U.S. Supreme Court Justice Thurgood Marshall, said the draft does not “achieve some natural quiet or reconciliation on the issue.”

“It seems to me the substance of the opinion is really problematic and out of step with the legal profession and American public and will not wear well,” Litman said. “That’s a dangerous position to be in.”

Litman said the draft opinion isolates abortion from the court’s previous jurisprudence which protected several unenumerated rights contained within the Constitution’s 14th Amendment.

Ledewitz agreed.

The draft opinion could mean an undoing of many other well-settled privacy rights, he said, like contraception, gay marriage, sodomy and the right to refuse medical treatment.

“It could undermine the right to privacy itself,” Ledewitz said.

Alito’s draft specifically includes language to thwart that idea: “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But Dickinson said Alito’s caveat does nothing to stop the court from taking such action later.

“Just because the opinion says that does not mean the decision doesn’t leave those other rights open to potentially be overturned in the future,” he said.

As for the leak itself, constitutional experts said it was a major ethical breach.

Ledewitz said he is 100% sure the leak did not come from a member of the court.

“That would be such a violation of a justice to the institution of the Supreme Court that there’s zero possibility,” he said.

Dickinson called the leak troubling, especially given that throughout the process of drafting and finalizing opinions, members of the court can reverse positions or soften language.

“It raises concerns about the legitimacy of the court and public trust in it,” he said.

He suggested two theories for why the leak happened: pro-life staffers on the court who are trying to entrench and solidify the majority opinion and make it harder for any justice to change their mind; or pro-choice staffers who did it to raise the public alarm and create pressure for some justices to change their minds.

“Conventional wisdom says the court should not be affected by public opinion, but history shows it is,” Dickinson said, citing the decision that legalized same-sex marriage.

Litman said it’s not the first time that there has been a leak from the U.S. Supreme Court regarding an opinion, but none that were even closely parallel to the one this week.

“It’s an absolutely seismic event in the court’s history,” he said. “It is really gob smacking and speaks either of a singular breach of protocol and ethics or a real desperation on the part of someone in the court.”