Politico has published what appears to be a draft Supreme Court opinion for Dobbs v. Jackson Women’s Health, the case poised to overturn Roe v. Wade. The leaked opinion, written by Justice Alito, strikes down Roe (and Casey) and returns abortion to states as a political matter. Tonight’s events are historic for several reasons.

First, the leak, which certainly appears to be authentic, is unfathomable. The Supreme Court’s business, other than oral arguments, is conducted behind sealed doors and sealed lips. Draft opinions, memoranda, or other judicial correspondence may come to light later and within a former justice’s collected papers. To put this out violates every expectation for justices, clerks, or anyone else who might see such documents.

Secrecy during judicial proceedings is critical. It allows the justices to argue with one another. Drafts are circulated between justices, suggestions, or even demands, might be made. Drafts, and even votes, can change in this back-and-forth process. Secrecy gives them the freedom to persuade one another, and they must trust that these documents will stay secret until the Court’s opinion is finalized and published.

The Court is designed, deliberately, to be separated from political pressure. Lifetime tenure insulates members from the turbulence of public opinion. Once on the Court, justices should be free to vote as they see fit. There are no more elections or appointments. While impeachment and removal exists to curb a dramatic abuse of power, justices have the freedom to decide.

Leaking a draft opinion, before the ruling is made, will only erode the Court as an impartial arbiter. Yes, I know it is unfashionable, and seemingly naive to speak of the Court in this way, but pulling the Court further into such a heated issue through a leak, makes it worse. If I were Supreme Court member, I would be worried about safety and security. I would be worried for my family and their well-being. This is designed to create maximum pressure on the jurists who may have voted to support Alito.

Second, the leak could be designed not just to pressure those who may have voted to overturn Roe, but also to create a political environment to goad Democrats in Congress to pass laws that codify abortion rights. This would almost certainly require abolishing the filibuster, since there is nowhere near 60 votes to get this done. Democrats, like Sinema and Manchin, and Republicans, like Collins and Murkowski, would be the primary targets. Bernie Sanders has already weighed in with this plan:

Third, there is no guarantee the leak is legitimate. While the document is laid out precisely like a Court opinion, and is written as a majority opinion that contains the Court’s ruling, there is no guarantee this is the case. Until we get verification from the Court, and I suspect this is forthcoming, we cannot be certain of what the majority is, or if this opinion reflects it. Remember, draft arguments are subject to change. This argument certainly bears all the marks of a majority opinion, but only time will confirm that.

Fourth, and finally, if it is true that the Supreme Court has overturned Roe v. Wade, it will mark a seismic shift in our constitutional order. Roe, like Dred Scott, or the Lochner era, was a flagrant abuse of judicial power, which usurped the role of legislatures, and the people who choose them. The Constitution is silent on abortion. While some rights are implied (like the freedom of association), and others could be protected through the Fourteenth Amendment’s Due Process Clause, those rights must be “rooted in our nation’s history,” or “implicit in the concept of ordered liberty,” the sorts of rights that are so vital they are assumed beyond the reach of a government elected by free people. Abortion just did not fit into those categories in 1973. If anything, there was a long history and tradition of regulating abortion. (Using privacy as a justification is no better. If anything, it may be worse constitutionally.)

The end of Roe would not mean the end of abortion, but it would mean the end of a constitutional right to abortion. Some states would certainly enshrine the protection within their laws, while others would restrict it dramatically. To the degree this decision might limit abortion in our country, it would be an unmitigated blessing. To make abortion radically less common, more political, legal, and cultural work, would have to be done.