WASHINGTON, D.C. (LifeSiteNews) – If a newly-leaked draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey really does reflect the U.S. Supreme Court’s final ruling in Dobbs v. Jackson Women’s Health Organization, it will represent the most consequential development in the abortion wars in most current activists’ lifetimes.
Last December, the Court began consideration of Dobbs, which concerned Mississippi’s HB 1510 law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. After its enactment in 2019, the Fifth Circuit Court of Appeals deemed it unconstitutional because of an “unbroken line dating to Roe v. Wade,” the 1973 ruling which imposed on all 50 states a “right” to pre-viability abortion.
On Monday evening, Politico published a leak of what appeared to be a draft of a majority opinion written by conservative Justice Samuel Alito indicating that, if real and final, the justices have voted 5-4 to finally overturn Roe, as well as 1992’s Casey, which reaffirmed Roe’s conclusion while modifying some of its details. On Tuesday morning, the Court announced the draft was authentic but “does not represent a final decision by the court or the final position of any member on the issues in the case.”
The leak has sent shockwaves across the political spectrum, with pro-lifers tentatively rejoicing, pro-abortion politicians and activists lashing out in anger, and many speculating that the leak may have been intended to pressure judges to flip their votes, or to incite hatred and threats against them.
It remains unclear whether the draft represents a tentative intention to overturn Roe, was prepared in anticipation of a majority to overturn, or was written in hopes of persuading Alito’s colleagues to sign on. Alternatively, it’s possible that the draft does represent the Court’s decision, but the Court does not want to say so until formally issuing the opinion alongside concurring and dissenting opinions.
Alito’s draft opens with a forceful repudiation of Roe’s merits, noting that the 1973 ruling “did not claim that American law or the common law had ever recognized [a right to abortion], and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (c.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature.”
“The Court did not explain the basis for this line [that states’ legitimate interest in protecting ‘potential life’ did not justify limiting pre-viability abortions], and even abortion supporters have found it hard to defend Roe’s reasoning,” Alito adds, quoting one of many pro-abortion scholars who have admitted as much.
Alito goes on to address the popular talking point that Roe is owed deference due to the stare decisis, the doctrine that gives added weight to rulings depending on how long they have stood as precedent.
“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution,’” he writes. “It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’”
“On many other occasions, this Court has overruled important constitutional decisions,” Alito notes, such as the pro-slavery Dred Scott v. Sandford and pro-segregation Plessy v. Ferguson. “Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
Alito also notes that, far from “ending division on the issue of abortion,” Roe ‘‘‘inflamed’ a national issue that has remained bitterly divisive for the past half-century.” He adds that the Supreme Court “cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on” and should not let speculation as to “how our political system or society will respond to today’s decision … influence our decision. We can only do our job.”
Ultimately, the opinion declares, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” Therefore, it is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Pro-life activists and legal analysts have had much to say of the opinion, with some expressing celebration and others opting to wait until the outcome is more official, but all agreeing that Alito’s work is laudable, and that the battle is far from over:
— National Right to Life (@nrlc) May 3, 2022
"I am optimistic that SCOTUS will not give into intimidation tactics, they will be intellectually honest, and they will honor justice here and undo the illogical decision of Roe v Wade, that has led to the killing of over 60,000,000 preborn children."
— Live Action (@LiveAction) May 3, 2022
Pro-lifers, potentially good news from SCOTUS tonight!
But remember, even if Roe v. Wade is overturned, abortion will still be legal in many parts of the country.
We still need to continue our:
1) Educational Activities
2) Service Activities
3) Legislative Activities
— Michael New (@Michael_J_New) May 3, 2022
"Alito does what the dissenters in Roe never did: he draws upon the precise facts about the development of that small human being in the womb." -H.A.
— James Wilson Institute (@JamesWilsonInst) May 3, 2022
"He leaves us then to draw the conclusion that should be obvious: that this child in the womb deserves the protection we would accord to all other human lives. We would leave it to the States to determine just how quickly, or fully, that protection is extended." -H.A. 7/
— James Wilson Institute (@JamesWilsonInst) May 3, 2022
Like many of you, I’m struggling to wrap my head around everything in the past 14 hours. On one hand I’m deeply saddened by the leak, and how toxic and damaging such an action is to our judiciary. 1/3
— Jeanne F. Mancini (@jeannemfl) May 3, 2022
If this opinion is adopted in the final decision for Dobbs, the chaos of an erroneously decided decision 50 years ago that has had such a profoundly negative impact on our culture and all women, and men, would finally be set right. 3/3
— Jeanne F. Mancini (@jeannemfl) May 3, 2022
“If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision,” said Susan B. Anthony List president Marjorie Dannenfelser. “The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women. If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature.”
“If this draft opinion is what the Supreme Court ultimately hands down in Dobbs, then it means state lawmakers have to get to work to enact strong state law and policy to protect life,” said Americans United For Life government affairs counsel Katie Glenn. “Americans United for Life calls on state lawmakers to meet in special session the moment the Dobbs decision is officially released to enact the strongest possible pro-life laws.”
“If the decision proves to be true, it will mean that the federal government has no business legalizing the murder of children It would right the wrong of the terrible injustice and evil falsehood that abortion is somehow hidden as a right in the Constitution,” added American Life League. “It would, however, not end the killing of babies. If Roe is overturned, the fight then turns to all 50 states. Babies will still be murdered, and sadly, many states will look to enshrine abortion in their state constitutions.”
“The leaked decision, bearing a February 2022 date, is not final. Justices may change their support of it up until the time the final decision is officially released, which is not expected until June or July – plenty of time for woke outrage to apply pressure on the Court,” Operation Rescue’s Cheryl Sullenger cautioned.
“The leak is a manifestation of yet another abortion-based epicycle: the breach of Courtroom confidentiality. Someone (we do not know who) thought the issue of abortion was significant enough to justify leaking a draft majority opinion to the press,” South Texas College of Law Houston professor Josh Blackman wrote. “This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion. Hopefully, this leak will be Roe’s final epicycle.”
If the ruling is final, its ramifications will be drastic. More than 20 states currently have laws on the books that would effectively ban abortion within their borders upon Roe’s fall, from pre-Roe abortion bans that went unenforced, to “trigger laws” designed not to take effect until a ruling like today’s. In those states, abortion would become illegal almost immediately after the ruling is issued.
More than a dozen other states, plus the District of Columbia, have laws on the books legally protecting abortion, at least three of which explicitly codify the practice as a “right.” Abortion would remain legal in those jurisdictions, as well as the remaining states that have not spelled out abortion’s status one way or another, but without Roe, state residents would have the power to vote on the issue for themselves or lobby their elected representatives to change the law in either direction. Pro-lifers in Congress could pursue a nationwide abortion ban, as well.