We were confident the Supreme Court would uphold the Dobbs late-term abortion case and were cautiously optimistic that it would also overturn Roe.
Then the bombshell hit – a leaked document, the first draft of Justice Alito’s majority opinion reversing Roe and Casey!
Until Monday the Supreme Court had a flawless history of keeping its closed-door deliberations under wraps. Yet the decision expected to be announced at the end of June was out there for all to see.
Chief Justice John Roberts verified the document is authentic but cautioned that it did not yet represent the final decision of every Justice. Even so we have good reason for joyful optimism but it’s premature to celebrate until the final draft is made public.
It is the strength of Alito’s statements that gives reason for encouragement. It is a robust repudiation of Roe. Here are a few excerpts.
Raw Judicial Power
To start, Justice Alito describes the abortion landscape before the 1973 decision. “At the time of Roe 30 states still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the ‘exercise of raw judicial power.’”
Legal experts on both sides of the abortion debate have criticized Roe as cringeworthy constitutional law. Alito and the majority agree. “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…”
Not only was Roe bad law, it and Casey divided our nation. “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. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Much has been said about stare decisis, that is, to stand by things decided. Alito deals with stare decisis in firm fashion. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” An argument we’ve heard repeatedly by advocates of Roe. Alito sets the record straight, “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.”
The humility with which Alito deals with stare decisis is a legal breath of fresh air. “We have long recognized, however, that stare decisis is ‘not an inexorable command’…when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.”
He lists an abundance of examples that demonstrate this isn’t the first time a major decision has been reversed. “On many other occasions, this Court has overruled important constitutional decisions. Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
The majority believe that the Court made bad law with Roe and compounded the mistake with Casey. “Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors…the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
Judicial Edict a Failure
Alito demonstrates wisdom and empathy for a nation divided by Roe. “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
Let the People Decide
Finally, Alito et. al. refuse to legislate from the bench. “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
The battle to protect innocent human life will continue after the demise of Roe. The fight moves into the states where the pro-life grassroots network excels. Pro-lifers are exceedingly mindful that many women may feel abandoned without access to abortion. It is our job to connect them with the many resources, both existing and being built, that will empower them to flourish as mothers.
The other side was quick to go on the attack claiming that those who refuse to cower to abortion on demand are evil. Democrat Sen. Patty Murray of Washington, “I am furious, furious that Republicans could be this cruel, that the Supreme Court could be this heartless.” They are the ones who facilitate killing tens of millions of babies yet accuse us of showing no mercy.
Pro-life education is more important now than ever as the battlelines move to the states where knowledge can save countless lives. We’re ready, willing and able to enter into the next phase of defending every baby from the moment of fertilization to natural death.
For the babies and their families,