The counterattacks began almost immediately after Politico reported on Monday night that it had obtained a leaked copy of a draft opinion from the United States Supreme Court that would eviscerate the nearly 60-year precedent set by Roe v. Wade establishing abortion as a constitutionally protected right.
“Roe was egregiously wrong from the start,” Associate Supreme Justice Samuel Alito, an arch-conservative appointed by former President George W. Bush, wrote in a 98-page draft. “We hold that Roe and [Casey v. Planned Parenthood] must be overruled,” he continued. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Politico also reported that Alito’s drafted Roe reversal had support from four other conservative justices—apparently enough to form a 5-4 majority—though it’s not clear that this draft would be issued as the actual majority opinion.
The unprecedented leak confirmed what many across the political spectrum had long feared. Former President Donald Trump’s appointment of three Supreme Court justices has brought about a tectonic shift on the high court, apparently delivering conservatives with their holy grail: enough votes to end the nationwide right to reproductive choice in the United States.
Though the right wing’s political engine has long been fueled by this quest, many Republican leaders are now trying to downplay the historic implications and refocus on the leak itself. GOP leaders seek to shift the debate to how an inflammatory draft opinion escaped from the highly secretive and insular confines of the nation’s highest court.
Republicans from Washington to Texas are spinning a coordinated—and unsubstantiated—narrative that this leak is the work of rabid Democrats who hope Alito’s draft will spur a fierce backlash that will force justices to abandon—or at least scale back—their support for ending Roe and the right to legal abortion access. This, they say, is an egregious political assault on the court. (Many liberals, meanwhile, contend that the leak was part of a plot by the right’s legal enforcers to deter any of Trump’s recently appointed Justices from getting cold feet.)
Asked by reporters about the potential electoral ramifications for Republicans, Senate Minority Leader Mitch McConnell sidestepped. “That’s not the story for today,” he said Tuesday, admonishing the media to “concentrate on what the news is today; not a leaked draft, but the fact that the draft was leaked.”
Top Texas Republicans have followed his lead.
“This leak is stunning,” tweeted Senator Ted Cruz, who was a clerk for former Chief Justice William Rehnquist. “Truly horrifying. And profoundly damaging to the independence of the judiciary, the integrity of the Court, and the rule of law.”
On Thursday, Senator John Cornyn—a former Texas Supreme Court Justice and Attorney General—took to the floor of the Senate for nearly 20 minutes to bemoan this “blatant attack on the independence of the Supreme Court” as a ploy by Democrats to distract the electorate ahead of the upcoming midterms.
“The Court is designed to operate free from outside influence, but Democrats are attempting to intimidate justices who don’t agree with them,” he said. “Sadly, this is nothing new.”
After nearly 24 hours of silence, Governor Greg Abbott—also a former Texas Supreme Court Justice and Attorney General—addressed the news on the friendly terrain of conservative talk radio. Again without evidence, Abbott theorized that the leak came from a liberal Supreme Court staffer or clerk in an effort to “hijack the decision process … to intimidate justices on the United States Supreme Court either to not agree [Alito’s] draft or to abandon that draft.”
He contended that the only solution was for the court to issue its opinion immediately.
“The majority opinion, in this case, must be issued this week to show that the United States Supreme Court will not be intimidated by this attempt at a hijack,” he said.
Indicted and embattled Texas Attorney General Ken Paxton celebrated Alito’s draft, though he claimed to be “shocked” by the leak, which he called a “designed play” by the left to get the Supreme Court to back down.
“They have no regard for the process. They only care about results, getting their results … no matter whether it’s right or wrong,” Paxton said on the Chris Krok Show.
Paxton and his fellow Republicans have leveled these claims with straight faces, despite the fact that the conservative movement has spent decades meticulously building a well-financed legal infrastructure aimed at grooming right-wing, anti-Roe ideologues to take over the federal judiciary.
The Texas Attorney General’s purported defense of judicial independence comes only months after Paxton intentionally mobilized a political pressure campaign aimed at forcing the judges on the all-Republican Texas Criminal Court of Appeals to reverse course after they issued a ruling that undermined his office’s power to unilaterally prosecute voter fraud.
While Republicans have spun the leak as a conspiratorial crusade against the court, they’ve simultaneously hailed the substance of Alito’s draft opinion as a triumph for the anti-choice movement—and the rightful return of abortion regulation to the realm of red-state rights.
“For the overwhelming majority of time that the United States has existed, this has been an issue that has been decided by the states,” Abbott said in an appearance on another conservative radio show this week.
Last year, the Texas governor signed into law measures that gave private citizens the power to enforce a near-total ban on abortion via civil litigation, as well as a “trigger” mechanism that would automatically outlaw abortion in the state upon the Supreme Court’s reversal of Roe.
Former state senator and gubernatorial candidate Wendy Davis is suing the state over Senate Bill 8, its “heartbeat” abortion ban. In response to Alito’s leaked draft opinion, she issued a call to arms for her fellow party leaders.
“Our rage is going to do us absolutely no good if we don’t put our votes behind it,” Davis said. “And if Democrats cannot use that to their advantage in this election cycle, something’s broken.”
Abbott, her gubernatorial opponent in 2014, said he doesn’t plan to shy away from abortion on the campaign trail against his latest Democratic challenger, as the Houston Chronicle reported.
“[Davis] was hailed as the abortion savior, but she lost to me by 20 percentage points,” Abbott said. “The same fate will meet with Beto on the campaign trail.”
An April poll of registered voters by the Texas Politics Project indicated that 54 percent would oppose the state automatically outlawing all abortions if the Supreme Court overturns Roe—including 80 percent of self-identified Democrats, nearly 60 percent of independents, and 34 percent of Republicans.
If the leaked version is later issued as the majority’s final opinion, it will not only affect women’s right to choose all across the United States; it may also accelerate the unraveling of federally protected rights in the name of “states’ rights.” Many legal scholars warn that such a ruling will ultimately imperil federal protections for same-sex marriage, interracial marriage, access to contraception, and beyond.
“It’s sweeping. It’s breathtaking. … All at once, 50 years of constitutional law is erased,” Duke University law professor Neil Siegel told Roll Call. “It reads like it was done by people on a mission.”
During Associate Justice Ketanji Jackson Brown’s confirmation hearing in April, Cornyn spent much of his allotted time pontificating about the Supreme Court’s Obergefell v. Hodges decision, which he compared to the court’s flawed “separate but equal” ruling that upheld school segregation in Plessy v. Ferguson. Cornyn argued the Court’s far more modern marriage equality ruling created a “right that is not even mentioned in the Constitution.”
Cruz and other Republican senators have echoed those sentiments while insisting that Roe occupies its own legal island.
“Look, I’ve said multiple times, I think Obergefell was wrongly decided,” Ted Cruz told Insider. “It’s not clear to me that there are pending challenges in the legal system to overturn it, and by any measure, we have not seen the level of fundamental societal division that Roe has inculcated for 50 years.”
In an exchange with a reporter from Insider, Cornyn also dismissed the notion that Alito’s Roe opinion could set the precedent for Obergefell’s demise. When pressed, Texas’ senior senator wouldn’t say whether he’d support overturning that decision—walking away from a reporter’s repeated inquiries.