Articles

Understanding Justice Alito’s Leaked Opinion

Justice Alito thoroughly dismantles the claim that the right to an abortion is found anywhere in the Constitution.

05/3/22

John Stonestreet

Heather Peterson

On Monday night, an early draft of the Supreme Court majority opinion in the Dobbs v. Jackson Women’s Health case was leaked to POLITICO. As SCOTUS Blog tweeted: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff.” Tuesday morning, Chief Justice John Roberts confirmed the authenticity of the draft, calling the leak a “betrayal of confidences of the Court intended to undermine the integrity of our operations.” 

Most likely, the leak was intended to pressure the Court’s conservative justices to moderate their opinion before a final decision is published. That would be especially inappropriate if the source of the leak is a clerk of one of the Justices. 

One response would be for the Court, as National Review’s Ed Whelan suggested, to announce the majority decision as soon as possible, allowing dissenting views to be published later. It’s happened before in extenuating circumstances. 

What’s not clear is how the leaked draft of the majority opinion will compare to the final draft. Unless it is somehow significantly gutted, Justice Samuel Alito has thoroughly and thoughtfully dismantled, at least in legal terms, the 50-year hold that Roe v. Wade has had on America. Here are three observations from the leaked draft. 

First, Alito thoroughly dismantles the claim that the right to an abortion is found anywhere in the Constitution. He states: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Thus, Alito concludes, the 1992 follow-up case to Roe v. Wade, known as Planned Parenthood v. Casey, would also be overruled. Quoting other cases, Alito insists that Casey’s basis on Roe’s precedent “is not an exorable command,” and that it’s time for the issue to “be settled right.” 

Second, Alito dismantles what he calls Roe’s “most important rule”: “that a State cannot protect fetal life prior to ‘viability.’” When Roe was established, viability was considered to be at around 28 weeks of gestation. 

Today, it’s at 24 weeks or younger. Viability, Alito further notes, is also based on the health of the mother and the hospital facilities where she lives. 

Given these multiple factors, Alito argues, “the viability line makes no sense, and it is telling that other countries almost uniformly eschew such a line.” In a footnote, Alito notes that the U.S and the Netherlands are the only nations that rely on viability as a standard for abortion law. He doesn’t mention what others have recognized, that the U.S. is most in line with the authoritarian regimes of China and North Korea in its abortion policy. 

Third, if this decision holds, the Court would not be outlawing abortion but returning the decisions about abortion to the states. “In the years prior to [Roe v. Wade],” writes Alito, “about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” Roe was, writes Alito quoting a dissenting opinion issued when Roe was originally decided, an “exercise of raw judicial power.” He then surmises that some states will expand abortion rights and others will limit them, but this is how states are supposed to work. State legislators will work out state regulations for abortion instead of a court, and voters will therefore have a voice in the process. 

Limiting abortion rights in any way, including moving the decision to the states, is intolerable for abortion advocates. In a tweeted response to the leak, Sen. Elizabeth Warren pressed for the elimination of the filibuster in Congress in order for the Women’s Health Protection Act to pass. This unlikely and extreme measure, which could be called the Abortion on Demand Until Birth Act, is not supported by a majority of Americans. According to a recent poll, 71% of Americans, including 49% of Democrats, want abortion limited to the first trimester. 

Warren also claimed that dismantling Roe v. Wade would be an act of racism. In the same tweet about eliminating the filibuster, she alleged: 

If an extremist Supreme Court overturns Roe, wealthy women will still get safe abortions—by traveling to another state or country. But women of color, those with lower-incomes, and victims of abuse will suffer the most. 

And of course, the leaked draft of Alito’s opinion also led to numerous Handmaid’s Tale references and the tired old canard that pro-lifers care about babies only until they are born. None of these claims are true. In fact, 4,000 pregnancy resource centers exist to help parents who may be in crisis. 

If this leaked opinion is indeed reflective of what the final decision will be, then we must do two things. First, we must thank God that this decades-long legal nightmare is over. Our efforts to protect babies and care for vulnerable women will no longer be immediately pre-empted by a legal evil masquerading as an invented “right.”  

Second, we must recognize that the Court has done its job, but it cannot do our job. State legislatures have very important work ahead, but they also cannot do the work to which Christians are called in this cultural moment: to speak the truth in love about the preborn, and to create a culture of life and care. 

Next week, a free event in Orlando, Florida, will help Christians prepare for a post-Roe world. If you’re in the area or nearby, register for an evening with speakers such as Tim Tebow, Erin Hawley of Alliance Defending Freedom, Jim Daly of Focus on the Family, Kristan Hawkins of Students for Life, and Stephanie Gray Connors of Love Unleashes Life. The evening will train you to respond to the particular slogans floating around about abortion, celebrate the beauty and dignity of life, and develop a strategy for joining this important cause. Register now for this event at  https://wilberforceweekend.org/regional-bonus-event/ 

And while you’re doing that, please also pray for the safety of our Supreme Court Justices, in light of this unprecedented and unlawful act. Pray that the intentions of whoever caused this leak will backfire, and for God’s true justice to reign.

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