What the Supreme Court Dobbs Case Leak Portends

The leak on the Dobbs case has caused all sorts of wailing, gnashing of teeth and accusations that the current court is an "evil, racist, classicist, Christian-supremacist, activist court" (yes there's a lot of tweets out there many by people who should or do know better making that assertion).

The problem, of course, is that the Roe court was itself activist as heck (whether it was evil depends on your point of view). The Justices at the time announced they had found the constitutional right to an abortion "in a riddle, wrapped in a mystery, inside an enigma".  Actually they didn't, and instead they discovered it in a penumbra emanating from the Bill of Rights, which is much the same thing, really.

While Roe has been law for 50 years, it froze the abortion debate, satisfied no one, and only hardened the sides to it.  It has not allowing any functional debate to move through the democratic process to help the matter be resolved or find a workable middle ground, and being based on such a flimsy to almost non-existent reasoning that they insist is now a "super-precedent" just made everything worse.

It's led to both sides going to extremes, and there's no sign of these extreme reactions subsiding and if anything both sides are doubling-down.

For example, New York and Virginia now have laws where abortions can take place up to the very moment of birth, and a baby can still be killed if it survives an abortion attempt (at least they didn't go quite as far as permitting the ol' fashioned 'swing 'em by the heels and bash their head into a wall' technique, at least not yet). Interestingly, in New York the number of abortions exceeded the number of live births between 2012-2014 - 285k to 237k. Clearly abortion is very popular in New York.

Then we have other states, mainly in the south, where if upheld, a woman will need to get a pregnancy test and decide within 14 weeks of doing the deed if she wants to have an abortion -- regardless of whether the deed was done willingly or not.

In short, there's not a lot of middle ground currently, and both sides are viewing it as an all-or-nothing choice and refusing to compromise or come to any sensible and legally sustainable position.

If the decision remains substantially similar to the February draft (and leaking it was likely a ploy to put pressure on the Court to not do so), and it does overturn Roe, that doesn't make abortion illegal in the United States. 

Instead, all that happens is the matter unfreezes and goes back to the states and people in their own states can then democratically decide what they want about abortion in their state. Democracy right?  The whole power to the people thing?

Now, if proponents of abortion don't like that, and from the current protests and hissy-fits going around the Internet right now they really, really don't -- they need to read up on the process of amending the Constitution to actually add abortion to it, thus making it actually a constitutional right.   

It will take actual work to get such an amendment passed, and it is by no means certain, but that's how you would properly add a right to an abortion to the Constitution.

But, instead of doing the work all these years to make it an actual Constitutional Amendment, the proponents of abortion have been relying on the very thin reed of what even its proponents agree is a really legally flimsy and almost untenable decision that was simply an activist court making an outcome-based ruling for what they wanted rather than an opinion based on any real solid legal grounds. They've also been constantly pushing the boundary of that decision ever farther.

That decision may finally be facing judicial review from, depending on your point of view, an activist court or a court that is actually analyzing and applying constitutional law to the decision.