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A reportedly draft majority opinion by Justice Samuel Alito for the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade has been leaked to the general public. The reactions from the usual groups on the left and Democrat politicians have consisted of—well, the same histrionics they have displayed to try to poison decades of Supreme Court nominations and decisions.
The left never had more than the bullying force of platitudes to add to the abortion debate. At the end of the day, platitudes stand no chance against sober legal analysis, at least not when judges are willing to deliver it.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson) (AP Photo/Anna Johnson)
And Justice Alito’s reported draft opinion delivers. It is thoughtful, scholarly, and thorough. It does the work that the majority in Roe and in its later muddled precedent, Planned Parenthood v. Casey, refused to do, looking to the Constitution itself to determine whether it includes right to an abortion. And the opinion concludes it does not.
Alito does not mince words about Roe and its progeny. He describes Roe as an “abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Roe was so “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed” that it “was on a collision course with the Constitution from the day it was decided.”
Alito’s opinion aligns the Court’s case law with the Constitution. It takes Roe apart, explaining why the emperor has no clothes. The Constitution makes no mention of abortion, and our government’s blueprint provides no implicit support for such a right either. Neither American law nor the common law ever recognized the practice to be a right, and the Roe Court had made the “plainly incorrect . . . assertion that abortion was probably never a crime under the common law.” More than three quarters of the states prohibited abortion at all stages of pregnancy at the time the Fourteenth Amendment was ratified. Until shortly before Roe, “abortion had long been a crime in every single State.” There was nothing left to the Court in prior cases to deem the abortion right to be a fundamental right, enumerated or unenumerated, except to advance bogus claims about prior law.
The Roe Court was left drawing lines like legislators, not judges—and the Court failed to provide “any cogent justification for the lines it drew.” This was true of the trimester framework, which Casey had largely dispensed with, as well as the “viability line” that survived Casey, which Alito bluntly explained “makes no sense” as a constitutional matter.
“[W]ielding nothing but ‘raw judicial power,’” quoting the phrase from Justice Byron White’s dissent from Roe in 1973, Alito asserted that “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
What about overruling precedent? The opinion’s excellent discussion of stare decisis notes that “some of our most important constitutional decisions have overruled prior precedent,” including Brown v. Board of Education (1954), West Coast Hotel Co. v. Parrish (1937), and West Virginia Board of Education v. Barnette (1943). Brown had overturned the separate-but-equal rule of Plessy v. Ferguson (1896). West Coast Hotel signaled the end of a string of precedents that struck down health and welfare legislation based on “liberty” protected by the Due Process Clause. Barnette held that public school students could not be compelled to salute the flag in violation of their beliefs, overruling a precedent only three years old.
Alito listed 26 other significant overrulings as well, in a footnote spanning more than a full page, to illustrate the emptiness of arguments that this opinion somehow violates Court standards by overruling a deeply flawed and damaging prior case. As an “egregiously wrong and deeply damaging” decision, Roe clearly merits overruling.
With this draft opinion, the Court explicitly rejects attempts to game out the political ramifications of its decision and confines itself to doing its job, “which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.”
And that is exactly the Court’s job. Here the Court finally takes itself out of the business of legislating abortion—a task for which it lacks both the authority and expertise. Instead, that job will rightly “be returned to the people and their elected representatives.”
Finally, the opinion, to its credit, does not try to dance around whether it is overruling precedent. It provides clarity: “Roe and Casey must be overruled.”
This is an outstanding opinion, but it is also one that we should not be reading now. The forces on the radical Left that seek to undermine the institution of the Court recognize no limits; they will stop at nothing to get what they demand.
This leak is just the latest iteration of the left’s shameful campaign to intimidate and undermine the Court. It is being used as yet another excuse to try to pack the Court, and it should be seen for exactly what it is.