A Note on Roe v. Wade

You may have read in the news recently the Supreme Court may end the 49 year ruling of Roe v. Wade, as this accouncement was made prematurely by an unprecedented leak.  Many legal scholars called for its reversal as it was considered to be bad law. The late Ruth Bader Ginsberg concluded the same, although she was pro-abortion. 

Certainly, the egregious ethical violation committed by the clerk or whoever leaked the draft opinion is a grave concern.  The justices make it clear to their new staff that unless they want a quick end to their legal careers, don’t even think about violating confidences as to what goes on in chambers.  In general, federal and state law clerks are on notice that no documents can be taken home, even to work on them, and they cannot speak to anyone about what goes on in chambers.  

The motivation behind the leaker appears obvious; but it’s hard to believe that as intelligent these clerks are, they would open themselves to so many problems. Perhaps they did not think about the probability of criminal charges in addition to the ethics violations. Even though a draft opinion may not be a classified document, section 18 U.S.C. § 641 makes it a crime to steal, sell, or convey “any record . . . or thing of value of the United States or of any department or agency thereof.”  The terms are interpreted broadly. 

Certainly, if there’s an investigation, the person who is questioned needs to be careful of running afoul of Section 1001, lying to investigators, which has no Fifth Amendment protection.  Moreover, Attorney General Barr made a comment in an interview that the person who leaked the document could be obstructing the administration of justice.  A grand jury would have to be convened. 

The Congress may not have the votes to codify Roe in a statute, and if they did, they would try under the Commerce Clause. As we know from our discussions, commerce at the founding meant trade, but now due to expansion of that meaning, the Tenth Amendment has eroded to a point where the government can tell a farmer what to grow on his or her farm.  

Even if the Court does not take the step in this case to follow the science and affirm or disaffirm when human life begins, a future challenge to a codified Roe may certainly bring that issue to the fore.  If the embryo or fetus is ruled to be a person, the law could not be upheld even under the Commerce Clause, beacuse all protected constitional rights would be vested in the embryo or fetus. 

Right now, it looks like if this passes, it’s only a state issue.