Leaked Abortion Decision

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By Casey Bukro

Ethics AdviceLine for Journalists.

The Supreme court verdict to overturn Roe vs. Wade, the landmark ruling establishing a constitutional right to abortion, came almost two months after a leaked draft of the decision was first reported by Politico.

The leak seemed as historic as the ruling itself. It was called “unprecedented,” mainly because all 98-pages of a first draft of an opinion written by Supreme Court Justice Samuel Alito was leaked May 2, 2022, and published by Politico in full. It signaled that the court would overturn the 1973 landmark Roe vs. Wade decision, which it did.

According to the draft, Alito came to the “inescapable conclusion” that “a right to abortion is not deeply rooted in the nation’s history and traditions.” Given the leak, the court’s final ruling appeared to be a foregone conclusion. In a 5-4 decision, the high court finally decided that individual states should establish their own abortion laws, which would make some states havens for abortions while others banned or penalized them.

Court observers said parts of previous Supreme Court decisions had been leaked or speculated upon before a final decision was rendered, but never the full text of a proposed decision as in the abortion case. It was described as a first in the court’s modern history.

In a statement, Chief Justice John Roberts confirmed that the leaked document was “authentic,” but went on to say it “does not represent a decision by the court of the final position of any member on issues in the case.” The court launched an investigation into the source of the leak. By the time of the final decision, no culprit was discovered. Some speculated it was a democrat or a republican with political motives who wanted the supreme court to protect abortion rights or abandon them. Either way, it appeared the leaker intended to influence the justices either to change their opinions or to stand fast on the Alito interpretation.

Court officials must honor their own rules and regulations governing conduct and confidentiality. Whether such rules were violated cannot be determined until the leaker is identified.

For journalists, leaks are a time-honored way to get information on stories of interest to the public. But is it ethical for journalists to use information obtained through leaks?

A reporter for an Illinois newspaper contacted AdviceLine, asking about the ethics behind publishing information gained from a person who attended an executive session by a local government body. The leaked information involved contract talks with school officials.

The newspaper already published the story, but the reporter wanted to know if it was ethical to use the information. Here is how the AdviceLine adviser answered the question:

“I asked how the information was obtained. Convinced it was obtained without deception and the source gave it up willingly to known reporters, I said there is nothing ethically wrong with publishing the documents. In fact, it seems to me to be good journalism to report on public officials about public matters when the information is obtained properly. The use of information from ‘leaks’ when there is no personal harm involved is proper.”


The Ethics AdviceLine for Journalists was founded in 2001 by the Chicago Headline Club (Chicago professional chapter of the Society of Professional Journalists) and Loyola University Chicago Center for Ethics and Social Justice. It partnered with the Medill School of Journalism at Northwestern University in 2013. It is a free service.

Professional journalists are invited to contact the Ethics AdviceLine for Journalists for guidance on ethics. Call 866-DILEMMA or ethicsadvicelineforjournalists.org.

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