Was the Original Roe v. Wade Decision Leaked?

On May 5 2022, popular posts claimed that the “original Roe v. Wade decision was leaked, too,” addressing assertions that the May 2022 leak of a Supreme Court draft decision to overturn Roe v. Wade was “unprecedented”:

At the time the post appeared, much had been made of the purportedly unprecedented nature of the May 2022 leak. In “A Supreme Court in Disarray After an Extraordinary Breach,” the New York Times reported:

“Until now, a leak of this kind would have been unthinkable,” said Peter G. Verniero, a former justice of the New Jersey Supreme Court. “The protocol of our highest court has been seriously ruptured. The leaking itself reflects another sad step toward casting the court as a political body, which, whatever your preferred jurisprudence, is most unhealthy for the rule of law.”

The court sustained collateral damage in March [2022], when it emerged that Virginia Thomas, the wife of Justice Clarence Thomas, had sent incendiary text messages to the Trump White House in the weeks leading up to the Jan. 6 attack and that Justice Thomas not only had failed to disqualify himself from a related case but also had cast the sole noted dissent.

The harm from the leak was more direct, raising questions about whether the court is capable of functioning in an orderly way.

On May 3 2022, a user on Reddit’s r/interestingasfuck made similar claims (citing NPR):

On May 2 2022, legal analyst Jonathan Peters published a lengthy thread about Supreme Court leaks over the years. Peters said that Time magazine published information about Roe v. Wade before the court announced it:

Both the Reddit and Imgur posts referenced a May 3 2022 NPR article, “The original Roe v. Wade ruling was leaked, too.” It reported in part:

NPR legal affairs correspondent Nina Totenberg previously told Morning Edition that “it really smells like, looks like and feels like the real thing” …

Leaks of any kind are rare at the Supreme Court, and Totenberg says there hasn’t been such a massive breach in modern history. She called it a “bomb at the court” that undermines everything the body stands for internally and institutionally, including its members’ trust in their law clerks and in each other.

“No fully-formed draft opinion has been leaked to the press or outside the court,” Totenberg says. “Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-flown, Pentagon Papers-type compromise of the court’s work.”

There were actually two Roe-related leaks

There have indeed been leaks at the court before, albeit of a different scale. One of them actually was about the case at the heart of today’s conversation: In 1973, the original Roe decision was leaked to the press before the court had formally announced it.

Searches for information about whether the original Roe v. Wade decision was leaked were difficult to clarify, due to the proximity of the search terms “Roe v. Wade” and “leaked” and more recent stories flooding out search engines.

Roe v. Wade was handed down as a ruling on January 23 1973, a seven to two vote holding that “that unduly restrictive state regulation of abortion is unconstitutional.”

Peters mentioned Time magazine in his series of tweets, as did a May 2022 Washington Post article, “The 1973 Roe v. Wade decision also was leaked to the press.” It reported:

While it may be the case, as Politico states, that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” it is not true that rulings have never been given to journalists before the announcement of the decision by the court. In fact, the result in Roe v. Wade itself was leaked by a Supreme Court clerk to a Time magazine reporter in January 1973. The issue of Time, with an article titled “The Sexes: Abortion on Demand,” appeared on newsstands hours before the decision was announced by Justice Harry Blackmun.

In 1973, the speed of publication was vastly different than that of 2022. In order to hit newsstands on the morning the decision was announced, the information would have outpaced public announcement of the decision.

An archival copy of the Time magazine piece (“The Sexes: Abortion on Demand”) bore a cover date of January 29 1973; it began:

Over the past half-dozen years [before 1973], Americans have taken an increasingly liberal attitude toward abortion. Four states-already permit abortion on demand; in the other 46, pressure is building for the easing of restrictive statutes. But the opposition is rallying its forces, too, and in recent months the controversy has become more heated than ever. The legal battles may be nearing an end, however. Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land. Such laws, a majority of the Justices believe, represent an unconstitutional invasion of privacy that interferes with a woman’s right to control her own body.

The historic ruling, upholding a challenge to Georgia’s restrictive abortion statute, will permit states to impose only minimal curbs on the right to abortion at will. These might include consent of a physician, licensing of abortion facilities and a ban on late termination of pregnancy. Beyond that, a woman’s freedom to end her pregnancy will not be significantly abridged. No decision in the court’s history, not even those outlawing public school segregation and capital punishment, has evoked the intensity of emotion that will surely follow this ruling. The pronouncement, ending 13 months of wrangling among the Justices, is certain to be met with passionate resistance by abortion opponents and to stir new controversy across the nation.

The basis for the court’s ruling is a 1965 Supreme Court decision that struck down Connecticut’s anti-contraception law and recognized for the first time a constitutional right to privacy in family, sexual and other matters. The Justices were also influenced by the 1972 opinion of U.S. District Judge Jon O. Newman that overturned Connecticut’s anti-abortion statute. Newman concluded that a fetus is not a person until it is born, and that it has no constitutional rights. Though acknowledging that there are wide differences of opinion about the moment when human existence begins, Newman ruled that the moral certainty of some people “must remain a personal judgment, one that they may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law.”

No court ruling can settle the ethical questions about abortion. In fact, as legal restraints are removed, the ethical issues become more urgent; every woman must then rely entirely on herself in deciding whether or not to end an unwelcome pregnancy. She may be influenced in her choice by religious and philosophical considerations, by her views on the right of self-determination, or perhaps by her awareness of the social and psychological consequences of abortion.

In that print context, it was clear that the reporting outpaced public knowledge of the looming Roe v. Wade ruling. It alluded to legal battles “may be nearing an end,” adding that Time was informed of the decision “last week,” prior to publication; the Washington Post noted that the January 29 1973 issue of Time “hit newsstands” on January 22 1973.

Amid claims the May 2022 Supreme Court draft decision leak (pertaining to a decision to overturn Roe v. Wade) was “unprecedented,” news outlets and social media posts suggested the “original Roe v. Wade decision was leaked, too.” A January 1973 issue of Time magazine indeed reported that the decision was imminent, describing the “historic ruling” which would “permit states to impose only minimal curbs on the right to abortion at will.”