The breathtaking implications of a leaked ruling
R. Albert Mohler Jr. | And a brazen attempt to intimidate the Supreme Court
Last night, the U.S. Supreme Court entered one of the most explosive moments of its long history. As most of the nation was settling in for the night, Politico dropped a bomb—a story based on a leaked document purporting to be authored by Justice Samuel Alito. That document appeared to be a draft of the court’s forthcoming opinion in the abortion case Dobbs v. Jackson Women’s Health Organization. That draft revealed a sweeping decision that would strike down Roe v. Wade and Planned Parenthood v. Casey in a comprehensive repudiation and utterly transform abortion law in the nation. Clearly, that draft was also leaked in a subversive attempt to undermine or marginalize the court’s decision and perhaps to divide its majority before any decision can be announced.
The release of this draft is dirty pool and horribly unethical. No such breach of the court’s prized confidentiality and protocol—complete with a draft majority opinion—has happened in the modern era. Understandably, most observers assume that the draft was leaked by someone with both access and an ax to grind. The stakes are unbelievably high. As SCOTUSblog commented last night on Twitter, “It is impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
No doubt, we will know more in the coming days. Some already point an accusing finger at one specific clerk to a liberal justice. Time will tell, but it may take more time than is available before the end of this court term in June. By then, we will have the court’s actual ruling, and that takes us to the content of last night’s astounding revelation.
If this draft opinion is indeed the court’s ruling, Roe is dead, Casey is dead. The document reveals that the court’s majority, including Justice Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, is ready to drop the bomb: “We hold that Roe and Casey must be overruled. 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 Fourteenth Amendment.”
The sound you now hear is the collapse of almost 50 years of horrifying Supreme Court precedent. If this document is indeed the court’s majority ruling, Roe is gone, Casey is gone, and the abortion question returns to the 50 states. This would be the greatest pro-life victory of the last half-century. The policy work of pro-lifers would turn to honest legislative energy, in Congress and state by state, to contend for the unborn. But the relief of pro-lifers may be eclipsed by the rage of abortion rights defenders. And, make no mistake, this document was leaked to stoke that rage and to undermine the majority’s resolve.
A look at the draft document reveals why the abortion rights movement is reeling. Justice Alito’s opinion is not just a refutation of Roe, it is a full-on indictment of the absence of any constitutional basis for abortion rights in the first place. “Roe,” writes Alito, “was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which also is not mentioned.”
The right to abortion, Alito argues, was just made up. Furthermore: “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. Nor had any scholarly treatise of which we are aware.”
Later, Alito asserts that the right to abortion has no sound basis in precedent. The movement to demand abortion emerged from social pressures, not from the Constitution. Beyond that basic fact, “Roe did not provide any cogent justification for the lines it drew.”
Justice Alito presses his case to acknowledge that the Supreme Court actually abandoned the entire argument it had presented in Roe back in 1973 when it sustained abortion rights in its 1992 Casey decision. The draft document lays bare the lack of any legal or constitutional basis for abortion rights, strips Roe and Casey of authority, and declaims the court’s earlier arrogance in declaring that it had any right to settle the abortion question for the nation: “This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
Last week, the editorial board of The Wall Street Journal warned that abortion rights supporters had undertaken a concerted political strategy. “All this,” the editors asserted, “is aimed at swaying the Justices to step back from overturning Roe and Planned Parenthood v. Casey because the political backlash against the Court will be ferocious.”
Whoever leaked that document to Politico is a prime agent of that agenda. This leak is a brazen effort to intimidate the court’s majority.
But, within the leaked document itself, we find these encouraging words: “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, and decide the 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.”
We must all pray that this resolve, and these very words, will hold fast in the days ahead and when the Supreme Court hands down its ruling in the coming weeks. The defenders of life dare to hope that this is indeed the court’s ruling. Oh Lord, let it be true.
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