Chronicle: The Fate of Roe c. Wade disclosed for the second time | Opinion


The leaked first draft opinion of the Supreme Court’s majority opinion to overturn Roe v. Wade may or may not be the judges’ final decision.

But its publication definitely triggered a tidal wave of astonishment at the flaw in the tribunal’s decision-making security.

Lawyers and the media described it as unheard of. Politico, recipient of the leaked document, called its unprecedented insight into the court’s deliberations on a case of great public interest.

These descriptions require an asterisk.

The original court decision Roe v. Wade in 1973 supporting a woman’s right to an abortion was given to a Time magazine reporter and prematurely published hours before the official court announcement.

The Washington Post’s James D. Robenalt recalled the earlier leak in a story detailing how it happened.

It appears that a jurist at the time, Judge Lewis Powell, gave an advance copy of Roe v. Wade to the Time reporter for context, with the understanding that she would not appear in the magazine until after it was released by the court. A judicial delay led to pre-publication.

A furious Chief Justice, Warren Burger, demanded the identity of the funder, threatening to demand that all court clerks take polygraph tests. But Powell’s clerk acknowledged he was the culprit, apologizing and explaining his arrangement with the Time reporter to withhold his story until the court formally issues its decision. Burger accepted his apology.

“The story of Hammond’s close call became legend to other court clerks at the time and has been passed down as a cautionary tale over time,” Robenalt wrote.

Current Chief Justice John Roberts quickly launched an investigation into who gave Politico the draft opinion in the Mississippi case challenging Roe v. Wade 50 years later.

He also verified the authenticity of the draft majority opinion obtained by Politico from an anonymous source, reminding the public “that it does not represent a decision of the Court or the final position of any member on matters of the case”.

Politico rightly pointed this out in its story, noting that judges indicate tentative impressions after the closing arguments of plaintiffs and defendants. A judge defending the majority writes a first draft of the opinion of the court, which is then circulated to the other judges for comments, modifications and possible change of opinion.

No one knows how far Roberts will go to try to identify the funder. The court operates primarily in private.

It would be unwise to pressure Politico or its reporters to release their source for the story that rocks every aspect of the abortion issue.

And with good reason.

If the initial draft of the court’s opinion is a prelude to the final decision, it will dramatically change the national abortion landscape.

More than 25 states have laws or constitutional amendments in place to ban or severely restrict abortion if Roe v. Wade is no longer the law of the land.

Bill Ketter is CNHI’s senior vice president of news. Contact him at [email protected]


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