Nothing decided yet

The leak of a draft United States Supreme Court ruling written by Justice Samuel Alito, which would overturn past court precedents in favor of leaving abortion laws to the states, has ignited intense political debate over the future of abortion laws and the institution of the Supreme Court itself.

It is important to keep in mind that the draft ruling at hand is just that, a draft, from February.

“Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled,” noted Politico, which broke the story.

In the 1992 case of Planned Parenthood v. Casey, which affirmed the right to an abortion, and which Alito’s ruling would overturn, Justice Anthony Kennedy is noted to have switched his vote.

In this case, according to Politico, Alito was tasked with writing the opinion after a preliminary vote by the justices. What we have is a draft without any indication that any of the other justices had weighed in.

Anyone who recognizes the danger of upending American institutions after the events of Jan. 6, 2021, should also recognize the problem with compromising the institution of the Supreme Court.

The leak of this draft ruling breaks the trust among the justices and their clerks, which is necessary for them to do their jobs in good faith, and opens up the court to the same toxic political gamesmanship of the other two branches of government.

As for what the draft reveals, Alito’s argument is of no surprise to anyone familiar with the conservative and constitutional originalist line of argument against the notion of a federal constitutional right to an abortion.

This ruling, if made official—and that remains an “if”—would have wide-ranging effects.

According to the Center for Reproductive Rights, about half of the states are expected to impose restrictions, and about half won’t, with abortion protected in 21 states, including California, by statute or state Supreme Court rulings.

There’s a broad array of possible outcomes here and we encourage Americans not to project too far ahead of what we know now.