“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment (Draft at 5).”
So declares a leaked draft majority opinion authored by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization. Of course, we are a long way from a published opinion; moreover, we should all be indignant that someone leaked the draft opinion contrary to all Court protocol. Still, it appears at least five votes have been cast to overturn the Court’s extraconstitutional abortion jurisprudence/public policy and return the issue to the states where the matter can be decided in our 50 laboratories of democracy.
Even honest progressives have long recognized that Roe rested on faulty constitutional reasoning. As Harvard Law professor Laurence Tribe, who served as a judicial adviser to President Obama, has observed: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
In the draft opinion, Alito lambasts the loosey-goosey legal reasoning, observing that “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” (Draft at 9-10)
As for claims that a right to abortion is so fundamental and deeply rooted in our history and traditions to make it essential to a scheme of ordered liberty, Alito has little difficulty answering this question. “Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy (Draft at 5).” Alito also delves into English history and observes that case law dating back to the 13th century and as well as legal treaties show “that abortion was a crime (Draft at 17).”
“The inescapable conclusion,” Alito wrote, “is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973 (Draft 24-25).”
Alito acknowledges that supporters of Roe and Casey make important policy arguments about the legality of abortion. Alito simply points out that the Supreme Court is not the body to “weigh those arguments and decide how abortion may be regulated (Draft 34).” Such arguments should be made to elected officials and neighbors who cast votes for or against those elected officials. With Roe and its progeny, Alito observes, “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people (Draft at 40).”
What about the sanctity of precedent? Alito points out that if the Court refused to correct bad constitutional decisions, then separate-but-equal would still be allowed. As it did in Lochner, the Court would still be second-guessing state and federal regulations of minimum wages, maximum hour requirements, and worker safety measures.
He concludes the draft with these words:
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
Never did I think I would see Roe overturned. Well, actually, I have not yet. Something tells me that Chief Justice John Roberts is working hard behind the scenes to flip Kavanaugh, Gorsuch, or Barrett. The opinions of the MSM that Trump delivered on his promise to overturn Roe may drive Roberts to make the Court appear non-political, even if it means upholding a statute or precedent that has no basis in law. Such an effort by Roberts would in itself be an essentially political maneuver; let’s hope Roberts fails in that work, if he attempts it.
This article was published by The Beacon