As I write this, pro-life Americans don’t know whether to celebrate, and pro-choice Americans don’t know how to protest. That’s because all of us are looking at the news—a leaked-but-not-yet delivered majority opinion from the United States Supreme Court overturning the Roe v. Wade decision from almost 50 years ago.
For years, many of us working in the pro-life space have anticipated the day that the Supreme Court would announce the repeal of Roe v. Wade. Years ago, when my team and I were working at the Ethics & Religious Liberty Commission (ERLC), we planned a pro-life event called Roe50 to mark the anniversary of the decision. I was the one arguing that the branding team should prepare for the distinct possibility that Roe wouldn’t even make it to 50 years.
Those working in the opposite space, on the abortion rights side, were likewise prepared for such an announcement. None of us were prepared for an announcement quite like this, for an “announcement” that is no announcement at all.
This has never happened before—where a leak from inside the Supreme Court delivers internal memos revealing what the court is planning to do. The resulting confusion means that most people are about 98 percent certain of what the court now plans to do. But we cannot really act on it, because there is always a possibility that the majority could change their mind between now and the release of the opinion.
Behind the confusion, though, there’s a simmering outrage. Last night my phone started vibrating with message after message from lawyers and politicians—most of them pro-life—outraged by the way this alleged ruling was leaked. Some speculated that a pro-choice clerk had leaked it, hoping public pressure might cause a reversal of the opinion before it’s released.
Others were sure that it was a pro-life staffer wanting to “seal” the decision before justices could change their minds. But for all of them, especially those who are attorneys, there was a sense that the institution of the judiciary could not survive this kind of lack of confidentiality in deliberation.
Whatever the cause, this is not actually a “leak” in the sense that we ordinarily use the word. What some would decry as leaking in other aspects of American life—say in the legislative process of back-and-forth negotiations on matters of public policy—are a longstanding expectation.
The same is true in terms of the executive branch. A president will often leak information ahead of time to see what sort of public response will come. Even within nongovernmental institutions, “leaks” are often what those seeking to evade accountability will call whistleblower reports of misbehavior by those in power.
None of those situations, though, describe what happened here. Whatever the cliché about the court looking at election returns, the judiciary branch is not the same as a legislative body and, indeed, exists partly to protect minority interests from any majority.
Moreover, in this case there was no “Pentagon Papers” sort of scandal—it wasn’t an whistleblower leaking news of misconduct. Instead, this was a decision the “leaker” either agreed with and wanted to lock down, or disagreed with and wanted to stop.
If this practice becomes the norm, every major decision will be a skirmish between the branches of government and between the court and public opinion. Not only that, but there will also be contention among anonymous figures seeking to marshal public opinion to sway the legal process—a process that must not be moved by polling data or activist mobilization but by constitutional mandate in order to maintain public legitimacy.
That’s especially true when almost every institution in American life—from the Congress to public health offices to the Boy Scouts to churches—are under the stress and strain of crises of credibility. Some of these crises are rooted in a “burn it all down” mindset at the moment, but many of them grounded in the failures of these institutions themselves.
The temptation right now would be to separate the opinion from these other questions of institutional stability. After all, they appear to be two different questions. One can support or oppose the outcome of the decision and have the exact opposite view of the chaos surrounding its release.
And yet, the questions really aren’t all that separate. While we do not know who leaked the opinion early—or why he or she did so—we do know that behind the leak was a loss of trust. This clerk or staffer or (far less likely) justice did not trust the justices to deliver a ruling based on their deliberation on the Constitution. That or they did not trust the public to accept this ruling. Indeed, Roe itself was a response to a kind of loss of trust.
Those who support legal abortion would say the Roe ruling trusted women to make these choices. Those of us who oppose legal abortion would say that the Roe court didn’t trust the people to persuade each other through the political process of establishing the right policy. So they bypassed that process with an intricate ruling of abortion based on stage or trimester—only banning abortion past a certain point in the pregnancy. And later, the concept of “viability” somehow emerged from the Fourteenth Amendment of the Constitution.
More importantly, however, abortion itself is the sign of a dangerous loss of trust. The relationship between mother and child—especially during pregnancy, the time of greatest vulnerability for both—is severed by violence against one or both.
Moreover, the reason we have abortion at all is because of the loss of the sort of social trust that would enable communities and governments and religious bodies to care for women in crisis and for children, born or unborn. All of these groups need to be, as my friend Michael Gerson wrote 20 years ago, “protected in law and welcomed in life.”
A baby is dependent on the trust of his or her mother, in the safety of a secure attachment from the womb onward. A mother is dependent on the trust of her community—ideally of the father and of her extended family. But she is also dependent on those who recognize the responsibilities of the community to care for her and her child. That is not only in the best of circumstances but also in cases that the first-century church called “widows and orphans in their distress” (James 1:27).
A society in which violence is employed as a solution to pregnancies in crisis is a society that has lost trust and credibility. And a nation that is left wondering whether the court has ruled on the most contentious issue of the past century—all because we don’t know whether to believe an anonymous person—also signals a crisis of trust and credibility.
If in fact Roe is overturned, those of us who are pro-life must work to convince our neighbors that we can and will love and protect both mothers and children. But whatever the outcome, the court must work to rebuild the credibility needed to be seen as something other than just another institution tottering among others that have fallen.
In the absence of trust, all that’s left is power; and that path is what led us to an abortion culture. And it’s the past that has led us to this moment of cynicism—an inability to even believe what our leaders have done or said, and much less to trust their motives.
So, in the end, abortion and institutional trust are not really two separate issues.
Russell Moore leads the Public Theology Project at Christianity Today.