Analyzing Alito’s Leaked Draft, How Roe Died, and Where We Go From Here

James SilbermanAbolitionism

Roe v. Wade is dead. Maybe.

Politico obtained and published on Monday what appears to be a draft of the Dobbs v. Jackson Women’s Health majority opinion authored by Justice Samuel Alito. In the 98-page document, Alito writes for the majority (which presumably is made up of Alito and the other four conservative justices), “We hold that Roe and Casey must be overruled.”

The leak is unprecedented in Supreme Court history. Never before has a full draft of a supreme court opinion been leaked to the press, and it is no secret as to why it was in this case. One of the left-wing justices or their clerks is likely attempting to create public unrest before the decision is announced in an attempt to impact the outcome of the case. (One of Justice Sonya Sotomayor’s clerks is an outspoken left-wing activist who has been a source for Politico writer Josh Gerstein in the past, leading many online to speculate that he is the leak. He very well could be and an investigation will surely ensue, but that question is not the purpose of this article.)

The draft does not mean that Roe is necessarily going to be overturned. The justices vote privately among each other months before the announcement of the final decision in every case, and can change their vote during that time. Chief Justice John Roberts famously voted against the Obamacare penalty in private conference before switching his vote and upholding the controversial law. However, the fact that one of the court leftists leaked this draft likely means they believe Roe really is going to be overturned. At least prior to the leak, Roe appears to have been headed for the ash heap. We’ll see if any justices buckle under the pressure. Nothing is official until the announcement of the decision.

Recapping Alito’s Argument

In his opening sentences, Alito explains that abortion is a contentious issue with Americans passionately falling into different camps, a foreshadowing of the opinion to come that Americans should be allowed to decide the issue at the ballot box. He then said that Roe was rooted in “plainly incorrect” historical arguments and quoted scholar John Hart Ely who said Roe “is not Constitutional law and gives almost no sense of an obligation to try to be,” before concluding, “We hold that Roe and Casey must be overruled.”

Alito spills much of his ink refuting the fake history purveyed by the Roe decision, which argued that the right to abortion is rooted in the common law and American history. Alito does this because in order to claim that the right to abortion is Constitutional despite there being no reference to abortion in the Constitution, abortion supporters must argue that legal abortion is protected within the 14th amendment’s protections of liberty because abortion is “objectively, deeply rooted in our Nation’s history and tradition.” Alito exposes the 1973 court’s lies, writing:

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware…

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.

“Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.”

Alito also attacked the stare decisis argument for Roe; that is, the idea that the court should uphold its own prior decisions even if they were wrong. While conceding that overruling prior opinions “is not a step that should be taken lightly,” Alito argues that “five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”

In these sections, Alito explains that “Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided.”

Interestingly, while elaborating on Roe and Casey’s “disruptive effects on other areas of law,” Alito quotes Justice Sandra Day O’Connor from Madsen v. Women’s Health Center: “no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion.”

O’Connor is arguing that the court repeatedly jettisoned long-standing rules and doctrines whenever they were inconvenient for the pro-abortion cause. This impacted the court and Constitutional interpretation far beyond the abortion issue. Lies often require further lies to cover them up, and that is exactly what the court was reduced to post-Roe.

How to Respond

This is undoubtedly a monumental development, one that will have profound impacts on the abortion battle going forward. However, we must be cautious before celebrating or praising the justices for what ultimately is an incorrect decision.

As Josh Craddock has detailed here (briefly) and here (in more depth), the term “person” as used in statutes and constitutions has historically been understood to include all human beings. As such, the 14th Amendment’s guarantee that “no state shall…deny to any person within its jurisdiction the equal protection of the laws” is a prohibition on abortion.

Contrary to Craddock’s perspective, Alito writes in his draft: “Wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

The abortion question is only left to the people if the people are at liberty to pick and choose which human beings receive the protections guaranteed to persons in the 14th Amendment. But if the people are at liberty to pick and choose which human beings count as persons, then the 14th Amendment doesn’t protect anyone. Under this theory, any group can be denied the equal protection of the law provided the people define them as non-persons.

In responding to the Dobbs decision, we must not celebrate the supreme court as if they just established justice or upheld the Constitution. They didn’t. While various positive impacts may result from this decision, Alito perpetuated an absurd and dehumanizing legal theory that will result in the death of many children. Because they failed to uphold justice, there is much work to do toward the abolition of abortion.

Why It Was Finally Overturned

There is an important lesson to be learned about the timing of this reversal. The Pro-Life Movement has snatched defeat from the jaws of victory time and time again in the five decades since Roe. Most notably, in the 1992 Casey decision, the supreme court was made up of an 8-1 Republican-appointed majority, with the lone Democrat being pro-life. A more surefire opportunity to overturn Roe couldn’t have been imagined in pro-lifers’ wildest imaginations.

But the ’92 court protected legal abortion once again. A major contributing factor was the impotence and weakness of the Pro-Life Movement. After the crushing decision was delivered, Focus on the Family Vice President Gary Bauer stood on the steps of the supreme court and declared “this is a great day for America, and for women and unborn children.”

Bauer’s disposition is emblematic of the pro-life leaders since Roe. They come begging to the courts every few years, leave with scraps, and pretend they’re winning.

Enter the Abolitionist Movement which is introducing bills in state-after-state to nullify Roe and immediately abolish abortion; which is gaining momentum in legislatures and getting new candidates elected each cycle; which helped the largest denomination in the U.S. pass a resolution that was covered in the nation’s largest publications calling governing authorities at every level to Obey God by ignoring Roe; which submitted supreme court amicus briefs demanding the court repent of Roe and obey Christ by abolishing abortion.

Frederick Douglass wrote, “Power concedes nothing without a demand. It never did and it never will.” In the Abolitionist Movement, preborn children had advocates who understood this and were making demands of the court and of the culture instead of obsequiously submitting. The culture and politics at the state level in many areas were shifting toward abortion’s abolition and Roe‘s nullification, a fact which undoubtedly impacted the justices, especially the more moderate ones.

This lesson must inform our strategies going forward. If you want a tyrant to relent, threaten their authority. Be confrontational. Make demands. This is the posture that brings cultural and political change.

Learning this lesson and related ones will be crucial because we still have a battle to fight in state legislatures around the country. One of the biggest hurdles to abolishing abortion has been removed, but we still have to persuade state legislatures to make preborn children equal under law, which no state will have done, even if Roe is overturned.

For instance, Oklahoma’s recently passed, much-hyped bill makes it illegal for abortionists to perform abortions but allows the mother to murder her children with impunity. Even in pro-life states that already have or will soon move to pass similar laws, we have much political and cultural work to do.

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