May 10, 2022

IntelBrief: Draft Supreme Court Opinion Foments Tension Across the United States

AP Photo/Gemunu Amarasinghe

Bottom Line Up Front

  • For many across the political spectrum in the U.S., Roe v. Wade is a deeply sensitive issue with religious, ethical, and personal dimensions; abortion has historically been a source of political unrest and violence.
  • The recent leak of the draft opinion from the U.S. Supreme Court occurs against the backdrop of massive political polarization in the U.S. and has the potential to fuel further division and distrust in the government and to politicize the judiciary.
  • The U.S. Department of Homeland Security warned that changes to legislation around issues like abortion could result in an increase in domestic violent extremism related to abortion from actors on all sides.
  • Law enforcement agencies in the U.S. are already preparing for unrest in the wake of the news and around the expected ruling, with high security fences now around the Court and increased vigilance regarding its communications.

On Monday, May 2, a leaked U.S. Supreme Court document was published by Politico; the draft opinion penned by Justice Samuel Alito put forward arguments to overturn Roe vs. Wade, the 1973 Supreme Court ruling giving women the right to privacy regarding personal health and ensuring access to safe abortions. For many Americans, the news sent shockwaves through communities both on substance and process; the Supreme Court has traditionally been ensconced in airtight secrecy and security. While the most immediate effect of the draft ruling would be to render it permissible to make illegal access to safe abortions and reproductive healthcare, there were also concerns that the draft opinion could call into question other rulings such as Obergefell v. Hodges, which affect individual choices in matters of marriage, or even earlier rulings which have been seen as landmarks in the defense of civil liberties. For many across the political spectrum in the United States, this is a deeply sensitive issue with a multitude of religious, ethical, and personal dimensions. However, it has also been a source of violence and political unrest, and the U.S. Department of Homeland Security in a May 2021 report characterized abortion-related violence as a form of domestic violent extremism.

Although the leaked document was a draft opinion, Supreme Court Chief Justice John Roberts has already confirmed that it was in fact an authentic document. Should it be adopted in June, in addition to restricting access to health services for women, particularly those already struggling with poverty or access to support services, the proposed ruling will have serious implications for victims of domestic violence, which has been globally exacerbated during the pandemic. Moreover, at a time of record levels of political polarization in the United States, it has the potential to fuel further division and distrust in the government, and further politicize the judiciary, eroding trust in one of the key institutions in the country. The prospect of the Court’s ruling and the impact on Roe v. Wade is likely to define the political landscape around the midterm elections this fall and mobilize voters on all sides.

Both the leak itself and the contents have already spurred rumors and conspiracy theories regarding the identity of the individual who shared the document and their alleged intent. Some have posited that this leak was perpetrated by someone on the political left, seeking to discredit the court and spur Democrats to political action. Some conspiracy theories have even suggested that this was done to jeopardize the safety of Republican judges, though any final ruling would make public the voting positions of individual justices. Others have argued that someone favoring Republicans leaked the document to harden the Court’s position and make it difficult to moderate any elements in internal discourse without appearing to compromise priorities of Republican judges.

The recent news has placed abortion-related violent extremism back on the agenda as a major concern for law enforcement. Attacks against healthcare are not new, with the Department of Homeland Security (DHS) recently warning that changes to legislation around hot button issues like abortion could result in an increase in domestic violent extremism related to abortion from actors across the political spectrum. The COVID-19 pandemic has already led to increased attacks against hospitals and medical staff by groups challenging the pandemic and the proposed mitigation measures, including vaccines, as a vast global hoax or conspiracy; as such, there are concerns about the implications of the Court’s anticipated ruling for the security of medical professionals across the country.

Heightened, pluralistic political activism in a democracy is of course a positive thing. However, already anti-government violent extremism (AGVE) has been on the list of concerns in the United States and many other countries, and it is possible that AGVE groups will seek to exploit any grievances or polarization that accompany the anticipated ruling. Law enforcement agencies in some states are already reportedly preparing for potential unrest and violence in the wake of the news and around the expected ruling, with high security fences now around the Court and increased vigilance regarding its communications. Although some media outlets have focused on the fact of the leak as the big story, it is the substance of the ruling and the reactions of voters that are going to be a generationally defining phenomenon. While the recent leak is very much an American issue and rooted in the history and laws of the United States, countries around the world are also watching these developments—many of which have adopted their own legislation in recent years (e.g. Ireland, Mexico, Colombia, Argentina) —for signs of the U.S. backtracking on civil liberties or rights. With space for civil society, women, minorities, and human rights defenders already at increased risk in many countries, policymakers and communities will be watching closely for implications of developments in the U.S. for their own countries.