Leaked SCOTUS Documents Show Court Is Set To Overturn Roe v Wade
Politico has released a majority draft by Justice Samuel Alito, written in 2017, which states:
“We hold that Roe and Casey must be overruled,” Justice Alito writes in an initial majority draft circulated inside the court.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision, which guaranteed federal constitutional protections of abortion rights, and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
A person familiar with the court’s deliberations said that four Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – voted with Alito in the conference held among the justices after hearing oral arguments in December. That line-up remains unchanged as of this week.
The fact that a court paper was leaked before a ruling was officially made is unprecedented. Still, the reaction to such a ruling will not only cause outrage with the Left but will put the decisions on abortion back with the states and the people, as it should be.
The Error of Roe v Wade
In 1868, in the wake of the Civil War, the Fourteenth Amendment was added to the U.S. Constitution. It affirms (in part): “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
More than a century later, this amendment played the starring role in the U.S. Supreme Court’s Roe v. Wade decision, which asserted a constitutional right to abortion and erased laws protecting unborn children nationwide.
One question at issue in Roe was this: Does the meaning of “person” in the Fourteenth Amendment encompass all members of the human species? Does it, therefore, encompass unborn children? If so, the Constitution guarantees them protection under the law.
Roe claimed, however, that the unborn don’t qualify as constitutional persons. Why not? The Court’s reasoning was remarkably flimsy. It argued that most other references to persons in the Constitution (such as a provision about persons eligible to serve in Congress) have no prenatal application—so “person” must not be meant to include the unborn.
But that doesn’t follow. Most provisions in the Constitution don’t apply to born children, either, and clearly, children were understood to be persons.
The Court ignored that dictionaries of the day defined “person” and “human being” interchangeably. It ignored the intentions of the Fourteenth Amendment’s framers, like main author John Bingham, who said the amendment protects “any human being” and is “universal.” And the Court tried to dispute, unsuccessfully, that both statutory laws and common-law history recognized unborn children as human beings deserving of protection. At the time of the amendment, most states classified abortion as an “offense against the person.”
This has been the push by the Left to dehumanize the unborn; they do so with the knowledge if they give them any humanity, they will be protected under the 14th Amendment. The Left refers to the unborn as a fetus, balls of tissue, and even parasites. By dehumanizing the unborn, they give the right to terminate such life in the same category as removing a tumor, a parasite, or something of this nature.
This brings us back to the findings issued in this paper, as is stated in Politico:
The disclosure of Alito’s draft majority opinion – a rare breach of Supreme Court secrecy and tradition around its deliberations – comes as all sides in the abortion debate are girding for the ruling. Speculation about the looming decision has been intense since the December oral arguments indicated a majority was inclined to support the Mississippi law.
Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court’s opinion. The draft is often amended in consultation with other justices, and in some cases the justices change their votes altogether, creating the possibility that the current alignment on Dobbs v. Jackson Women’s Health Organization could change.
The chief justice typically assigns majority opinions when he is in the majority. When he is not, that decision is typically made by the most senior justice in the majority.
A George W. Bush appointee who joined the court in 2006, Alito argues that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that invented a right mentioned nowhere in the Constitution and unwisely sought to wrench the contentious issue away from the political branches of government.
Alito’s draft ruling would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that found the Mississippi law ran afoul of Supreme Court precedent by seeking to effectively ban abortions before viability.
Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.
Alito approvingly quotes a broad range of critics of the Roe decision. He also points to liberal icons such as the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at certain points in their careers took issue with the reasoning in Roe or its impact on the political process.
Alito’s skewering of Roe and the endorsement of at least four other justices for that unsparing critique is also a measure of the court’s rightward turn in recent decades. Roe was decided 7-2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents.
So Where Does This Go Forward From Here?
Nothing will be done until the ruling is brought forward and officially submitted; at that point, there will be changes that will quickly happen.
States would have to decide what their stance is on Abortion quickly. Many states with laws on their books that make abortion illegal now support it, others who showed support have now turned against it.
The overturning of Roe would almost immediately lead to stricter limits on abortion access in large swaths of the South and Midwest, with about half of the states set to impose broad abortion bans immediately. Any state could still legally allow the procedure.
We would see a push to define when life begins; this would come from both sides. Such a unified definition would, if it could be agreed upon, would result in protection for the unborn at a certain stage of development.
But this also pushes states with a more liberal stance on abortion to increase the right to abortion, including up to infanticide, the right to destroy a life, even after born, classifying a person at a certain stage after birth as a human, thus stripping away the rights of the newly born.
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