The leak Monday night of a draft Supreme Court opinion suggests that anti-abortion advocates are about to be handed their most decisive victory in decades: the overturn of Roe v. Wade.
Yet since news broke of the draft Dobbs v. Jackson Women’s Health Organization decision, prominent anti-abortion figures from the worlds of religion, advocacy and politics have largely refrained from claiming victory.
National Right to Life (NRL), which calls itself the nation’s oldest and largest pro-life organization, released a short statement saying it would await an official opinion from the court. Speaking to Grid on Thursday, NRL’s president Carol Tobias echoed that cautious optimism. “There’s no point in jumping up and down and celebrating until we know that there haven’t been changes,” she said.
Another major anti-abortion advocacy group, Americans United for Life, issued a longer statement quietly lauding Justice Samuel Alito’s draft Dobbs opinion — “Today is a day for courage and hope” — while also focusing on the leak. The group described it as “politically-motivated,” intended to pressure justices to change their votes.
“My general sense is that there’s optimism” among anti-abortion activists, “but they’re worried about too much optimism,” said Andrew Lewis, a political scientist at the University Cincinnati and author of “The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars.”
“They’re going to face enormous [political] pushback if it comes down this way, and so they’re trying to figure out how to navigate that, how to prepare for that,” he added.
For religious groups, quiet calls for patience and prayer
For advocacy groups who have long sought to reverse Roe, the Alito opinion would be only the first step in what they believe could be a complicated, state-by-state battle to fully ban legal abortion in the United States, experts and advocates told Grid.
“It’s going to be kind of a patchwork of state laws,” said NRL’s Tobias.
Meanwhile, key religious groups have called for patience and prayer on the draft ruling. The Conference of Catholic Bishops (USCCB) and the Southern Baptist Convention (SBC) are two of the most prominent and powerful anti-abortion religious groups in America. In a public statement issued Wednesday, the USCCB said it urges “everyone to intensify their prayer and fasting that the final decision of the Court will bring about the reversal of Roe and Casey,” referring to the 1992 case of Planned Parenthood v. Casey, which upheld Roe. The organization did not respond to requests for comment from Grid.
A spokesperson for the Southern Baptist Convention directed inquiries to the organization’s political advocacy wing.
There’s a strategic logic to having a subdued reaction in this moment, said the University of Cincinnati’s Lewis.
“It’s easy for defenders of strong abortion rights to come out and say, ‘This is a huge problem.’ But if you want the decision to be what was leaked, I think they’re trying to figure out how best to play that politically,” he said.
Downplaying the ruling’s significance would be a familiar stance for some. Evangelical leaders have long deemphasized the importance of overturning Roe, even as they have championed that outcome. In 2018, as Trump nominated anti-abortion jurists to federal courts, prominent anti-abortion leaders like Jerry Falwell Jr. were measured in their public response.
“What people don’t understand is that if you overturn Roe v. Wade, all that does is give the states the right to decide whether abortion is legal or illegal,” Falwell told the Associated Press. “My guess is that there’d probably be less than 20 states that would make abortion illegal if given that right.”
According to the Guttmacher Institute, which tracks abortion-related politics, 26 states are almost “certain or likely” to outlaw abortion as soon as the official ruling comes down.
Politicians point fingers
Right-wing politicians and conservative media sensed electoral danger in the win. With the midterm elections just months away, Alito’s fiery opinion could energize unprecedented activism on the left and draw more women voters away from the GOP, experts say. That may explain why Republican leaders have largely focused on the leak itself over the consequences of the possible ruling.
“You need to concentrate on what the news is today. Not a leaked draft but the fact that a draft was leaked,” Senate Minority Leader Mitch McConnell (R-Ky.) told reporters on Tuesday.
The Washington Post quoted an anonymous GOP strategist who said Republicans are concerned that the abortion issue could lose them support from suburban white women, a coveted swing voter bloc.
The National Republican Senatorial Committee recommended their candidates adopt a “consensus-builder” tone, encouraging Republicans running for Senate to stress that they will not put women in jail or take away contraception access, Axios reported.
In fact, several states have enacted mandatory minimum sentences that would go into effect if Alito’s draft becomes court opinion, as Politico has noted. In Texas, for example, anyone who performs, induces or attempts an abortion could face life in prison, according to the outlet.
Brent Leatherwood, the acting president for the Ethics and Religious Liberty Commission, the SBC’s political advocacy arm, told Grid in an email that the group was holding its optimism at bay.
“There is actually quite a bit of deep appreciation for many aspects of the Alito draft because it touches on so many of the points pro-life voices have been making for years,” he wrote. “But the very nature of the document itself, being a draft, means it can change. So it is only right to wait and see the final majority opinion which, obviously, we would hope at a minimum looks very similar to this draft.”
Elsewhere, Leatherwood, who previously led the Tennessee Republican Party, highlighted the dubious source of the draft. “This is truly a breathtaking development,” he told Christianity Today. “But this leak also represents an incredible rupture of the protocol that has seemingly governed court deliberations since its inception.”
Conservative media, including Fox News and Newsmax, also focused its message on the still-anonymous source of the leak. The Washington Post found that on cable news, as of 4 p.m. on Tuesday, “the terms ‘leak’ or ‘leaked’ had been mentioned 213 times on Fox News programs, compared with 146 times on MSNBC and 86 times on CNN.”
This is reflected in lawmakers’ messaging on social media. A Grid analysis of tweets by members of Congress from Monday through Friday found that while Democratic members overwhelmingly tweeted about “Roe,” Republican politicians tweeted about the leak of the opinion, with many fewer mentions of the landmark decision it would overturn.
More rights could fall
Some on the left believe their political opponents’ silence may augur worse to come and are gearing up for attacks on other rights secured through court rulings, particularly regarding sexuality, marriage and reproduction.
As Adam Serwer in the Atlantic observed, the Alito opinion depends in part on a reading of the 14th Amendment that sends the legality of abortion to state legislatures — but which could also be relied upon to support efforts to overrule federal rulings on other issues, including same-sex marriage and access to contraception.
In their public messaging, anti-abortion activists are downplaying these potential ramifications, perhaps knowing that the rights they would diminish are far more publicly popular than abortion, which has split the U.S. electorate for decades.
“There’s much less political and legal activism to alter the status of same-sex marriage, to alter the legality of contraception,” said Lewis. “While some of those are derivative of this kind of ruling, politically, that would be much more difficult. Public opinion is much more in support of contraception and same-sex marriage.”
But some activists on the far right are indeed signaling that other restrictive decisions should come next. “Next stop Brown vs. Board,” said white nationalist writer Peter Brimelow, referring to the landmark case that outlawed racial segregation in schools.
Many advocates say they are eyeing a nationwide abortion ban. For years, that’s been the goal of some of the strongest anti-abortion advocates: the declaration of a fundamental right to life for fetuses.
“It’s not enough to send abortion back to the states,” tweeted Lila Rose, founder of the anti-abortion group Live Action. “We will not have true Justice until every human being’s right to life is legally protected from the moment of fertilization. The Constitution is not silent on abortion. The 14th Amendment’s guarantee of equal protection and due process should make abortion illegal nationwide.”
Matt Stiles contributed to this report. Thanks to Lillian Barkley for copy editing this article.