May 10, 2022
The United States Supreme Court is currently reviewing a case that may reverse Roe v. Wade, which the History website explains “was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.”
The History website also explains that “In May 2022, the nation's highest court agreed to hear Dobbs v. Jackson Women’s Health Organization, regarding the constitutionality of a Mississippi law banning most abortions after 15 weeks of pregnancy. The case presents a direct challenge to Roe v. Wade.”
The news broke when a draft opinion written by Justice Samuel Alito was leaked to and published by Politico. This draft opinion, secretly and wrongly provided by someone associated with the Court, has started two huge reactions.
One reaction is outrage that the decision beloved by abortion supporters may be reversed. The other is disgust and anger that the leak has damaged the integrity of the Court as never before in its history, and that it was done by someone on the inside.
"We hold that Roe and Casey must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."
He also wrote that while defenders of Roe point to the Due Process Clause of the 14th Amendment to justify the decision, they are mistaken, CNN reported.
“In the draft, Alito batted away arguments that other provisions of the Constitution dealing with privacy or liberty might be relied upon to uphold a right to an abortion,” the network’s story continued.
“That's because, according to Alito, while the Due Process Clause might guarantee some rights that aren't mentioned explicitly in [the] Constitution, such rights have to be ‘deeply rooted in this nation's history and tradition. The right to abortion does not fall within this category,’ he said.”
Alito went on to say that Roe was "egregiously wrong" from the start and its reasoning is "exceptionally weak," CNN reported.
His conclusion was that the issue must be decided by the states, not the Supreme Court. "That is what the Constitution and the rule of law demand," he wrote. "Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated," he added.
Paul Stark, writing for Minnesota Citizens Concerned for Life (mccl.org) on Jan 20, 2017, provided three reasons why Roe was an improper ruling.
“First, and most importantly, the outcome of Roe is harmful and unjust. Why? The facts of embryology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. ‘Human development begins at fertilization when a sperm fuses with an oocyte to form a single cell, a zygote,’ explains a leading embryology textbook. ‘This highly specialized, totipotent cell marks the beginning of each of us as a unique individual.’"
“The second problem with Roe is that it is an epic constitutional mistake. Justice Harry Blackmun's majority opinion claimed that the ‘right of privacy’ found in the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘broad enough to encompass’ a fundamental right to abortion. There is no reason to think that's true.”
“Third, Roe is undemocratic. Roe and Doe v. Bolton together struck down the democratically decided abortion laws of all 50 states and replaced them with a nationwide policy of abortion-for-any-reason, whether the people like it or not. Of course, the Court may properly invalidate statutes that are inconsistent with the Constitution (which is the highest law). But Roe lacked any such justification.”
A National Right to Life Committee (NRLC) factsheet estimates that if Roe v. Wade is overturned, "18 states would protect unborn children immediately." This is due to laws implemented prior to the Roe ruling, or “trigger” laws that would go into effect upon Roe’s reversal, or both.
The NRLC also estimates that action to “allow abortion either through legislatively-enacted statute or a court ruling interpreting the state constitution to convey the right to abortion” would occur in 23 states.
The leaked document predictably has liberals and conservatives blaming each other. PBS online said, “Republican members of Congress are suggesting a sinister left-wing plot to derail the outcome of the final decision. Liberals are alleging machinations from the right to lock the justices into their preliminary vote.”
Regardless of who leaked the opinion and why, this is a serious problem for the Court, which has been immune to such scurrilous behavior, thus far.
Chief Justice John Roberts called the act “absolutely appalling.” Appearing at the 11th Circuit Judicial Conference in Atlanta, Roberts said he hoped “one bad apple” would not affect “people’s perception” of the Court, adding that “the person” or “people” who leaked the document are “foolish” if they think it will affect the courts work.
Put abortion in the hands of the states, and punish the leaker accordingly.
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