Oswald Clark and Paul Tuns:
On May 2, Politico revealed a leaked copy of the 98-page majority decision in Dobbs v. Jackson Women’s Health Organization, a case challenging the constitutionality of a Mississippi law that bans abortion after 15 weeks gestation, that would overturn the infamous Roe v. Wade ruling.
Chief Justice John Roberts confirmed that the leaked draft was authentic and ordered an investigation into the leak. Roberts said in a statement: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
Oral arguments in Dobbs were heard in December and according to Politico, an opinion overturning the existing jurisprudence on abortion in the United States — Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) — was written by Associate Justice Samuel Alito and distributed to his colleagues for comment and revision. The leaked copy indicates that a majority including associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have agreed that Roe was wrongly decided and should be overturned.
Politico reported that a vote taken shortly after oral arguments found that the five justices agreed to overturn the Court’s abortion precedents, which declared abortion a constitutional right and that states could only limit abortion in late-term (Roe) and post-viability (Casey). Associate justices Elena Kagan, Sonia Sotomayor, and the retiring Stephen Beyer oppose overturning Roe and Chief Justice John Roberts is undecided. The Alito draft was circulated to his fellow justices in February.
Politico reports: “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled.”
If the Alito decision stands and Roe and Casey are overturned, the issue will return to the states unless Congress passes a law codifying abortion or outlawing it.”
There is no guarantee that the leaked decision will be the final ruling or even it if is, be unchanged by the suggestions of Alito’s colleagues. But as it stands now, Alito wrote, “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
There was no need to respect precedent, Alito argued, because, “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.”
Alito wrote, “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis (the principle respecting precedent), and decide this case accordingly. 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.”
Alito argues clearly that the Constitution does not confer a right to abortion nor does it emanate from another right. Alito wrote: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision – including the one on which the defenders of Roe and Casey now chiefly rely: the Due Process Clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ The right to abortion does not fall within this category.” Alito continued: “Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the 14th Amendment was adopted, three quarters of the States made abortion a crime – at all stages of pregnancy.”
Ed Whelan, president of the Ethics and Public Policy Center wrote at National Review Online that Alito’s decision was “a masterful document” with a nine-page summary introduction that outlines the major points that the Justice makes before meticulously developing each argument against the Court’s previous jurisprudence on abortion.
Mississippi Attorney General Lynn Fitch said, “We will let the Supreme Court speak for itself and wait for the Court’s official opinion.” The National Right to Life Committee took the same tact, choosing not to comment on the leaked decision.
Americans United for Life issued a statement applauding, “the Supreme Court’s courage in abolishing its abortion precedents, which have led to the deaths of more than 60 million Americans since 1973, and we encourage the Court not to waver despite the politically-motivated leaking of this draft opinion.”
American Life League issued a statement that was more tempered: “Make no mistake — if Roe v. Wade is overturned, a grave injustice will be undone, but babies will still be murdered. In fact, the word “baby” is not mentioned in the draft decision written by Justice Samuel Alito. Until the personhood of the preborn child is declared, abortion will continue.”
Eric Scheidler, executive director of the Pro-Life Action League, said the leak “suggests that we are about to enter an entirely new landscape on abortion in the United States,” as “America is finally emerging from the abortion nightmare.” Scheidler said, “in many states, unborn children will be welcomed back into the human family, recognized as our brothers and sisters and protected by law,” but that in others, “these children are under constant threat.” He said, “Our task now is to bring this expansion of human rights — the fundamental right to life — to every state.”
More than half of the states (26) will have total or near-total, six-week, eight-week, 15-week, or 20-week bans on abortion if Roe is overturned. States such as Arizona, Alabama, Michigan, West Virginia, and Wisconsin would go back to pre-Roe bans, but other states have so-called trigger laws that enact protections once Roe is overturned.
South Dakota and Wyoming would ban all abortions, and Arkansas, Oklahoma, and Utah will have a near-total bans triggered by the overturning of Roe. Bans on abortions after six weeks are either in effect or would kick in if Roe is overturned in Georgia, Iowa, Idaho, Kentucky, Louisiana, Mississippi, Ohio, North Dakota, South Carolina, Tennessee, and Texas. Missouri would ban abortions after eight weeks. Nebraska bans most abortions after 15 weeks and a Florida ban on abortions after 15 weeks of pregnancy goes into effect in July. In Montana a 20-week limit for abortions is in effect. Indiana, which has enacted more than 50 anti-abortion laws over the past decade, is scheduled to take up a complete abortion ban later this year.
Other states including California and New York are offering to pay for women who must travel out-of-state to procure an abortion if they are illegal or severely limited in their own state. About a dozen businesses including Amazon, CitiGroup, and Uber said they would pay for their employees who work in states that restrict abortion to travel to states with more permissive abortion laws as part of their employee benefit packages.
Alexis McGill Johnson, president of Planned Parenthood Federation of America, called the leaked opinion “horrifying” and “devastating,” and vowed “Planned Parenthood health centers remain open, abortion is currently still legal, and we will continue to fight like hell to protect the right to access safe, legal abortion.” NARAL Pro-Choice American issued a statement saying Alito’s draft, “is the most ominous and alarming sign yet that our nation’s highest court is poised to overturn Roe v. Wade, ending the constitutional right to abortion as we know it.”
Senate Majority Leader Chuck Schumer re-introduced the Women’s Health Protection Act for the second time this year, which would codify abortion as a legal right and guarantee its access through funding and forcing all healthcare providers to supply the procedure. It was defeated 51-49 in the Senate when Democrat Joe Manchin (West Virginia) joined all Republicans, including two self-professed pro-choice Republican senators, opposing the bill.
President Joe Biden called abortion a “fundamental right” and said if the Supreme Court overturns Roe, “it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose.”
Rep. Chris Smith (R, N.J.), co-chairman of the House Pro-Life Caucus, told EWTN’s Raymond Arroyo if Roe is overturned, “this is a new phase. It’s not the end, it’s the beginning of a national debate on abortion, and for the first time ever, the child will be paramount.”
Kristan Hawkins, president of Students for Life of America, would seem to agree. She said the pro-life movement has been “preparing for this moment for 50 years,” and that her group will “work in our states, on our campuses, and in the communities in a post-Roe era,” adding, “no woman will be left standing alone.”