Draft opinion on abortion wounds court’s credibility

A draft Supreme Court opinion, joined by at least five justices, argues that court decisions legalizing abortion since 1973 were “egregiously wrong” and “must be overruled.”

Even if the ruling is altered in the weeks ahead, the mere existence of the draft reflects a damning and damaging truth.

The Supreme Court is now just another political institution, reflecting the polarizing partisanship that continues to undermine the ideals of comity and compromise in public life.

Not only does the draft pick sides on perhaps the most emotional issue of the last half-century, but it favors a decidedly minority view. A new ABC/Washington Post poll reports, “54% of

Americans think the 1973 Roe decision should be upheld while 28% believe it should be overturned -- a roughly 2-to-1 margin.”

However, if the zealots behind the draft opinion are out of step with mainstream America, so are those who favor unfettered access to abortion. “A strong majority would like to see restrictions on abortion rights,” according to a recent Marist Poll.

“The debate is dominated by the extreme positions on both sides,” Barbara Carvalho, the poll’s director, told NPR, but “that’s not where the public is.”

That’s not where the court has been, either. The original Roe decision — and its update in the Casey case 19 years later — rather accurately reflects the rejection of extremes described by Carvalho. In Casey, the court altered Roe to permit more restrictions, as long as they came after a fetus was “viable” outside the womb and did not impose an undue burden on the mother.

This reasonable compromise was largely fashioned by three centrist justices, all appointed by Republican presidents, who represent honorable GOP traditions that have largely disappeared. David Souter of New Hampshire was a classic New England progressive. Sandra Day O’Conner of Arizona, reflected a frontier tradition of limited government intrusion into private lives. Anthony Kennedy of California followed a moderate path that enabled him to be the swing vote on the court for many years.

Compare them with Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, committed ideologues who came to the court determined to overturn Roe and Casey and to please the powerful bloc of conservative Christians who voted heavily for Donald Trump precisely because he promised to pack the court with reliable conservatives.

The five-justice majority in Casey — augmented by liberals Harry Blackmun and John Paul Stevens — also grappled with another critical issue that is directly relevant to the current debate: the clash between popular will and fundamental rights.

Abortion foes say the issue should be left to the states rather than unelected judges. And it’s estimated that about half the states would impose major restrictions if given the chance. But the American constitutional system has always limited the power of the majority to abrogate rights that are deemed fundamental. In Casey, the court said, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.”

Casey also points to the importance of relying on precedent, which protects the court from allegations that it simply bows to changing political power.

The Casey decision reflected a reasonable compromise with an understanding that abandoning precedent for political reasons would deeply damage the court.

If the draft opinion overruling Roe and Casey does become law, that’s exactly what will happen. Women will lose a fundamental right they’ve had for almost 50 years. And the court’s credibility will suffer a severe, self-inflicted wound.