There are two levels to this story. The first is the absolutely unheard-of fact that a Supreme Court opinion was leaked before the Court officially issued it, something that’s incredibly damaging to the institution. The second is that, if this really is the decision that the Court will issue, Justice Alito is 100% correct that Roe v. Wade has no constitutional basis and that, under the Constitution as written, the question of abortion belongs to the individual states.
The news was shocking: Politico reported that it had received a draft of the final opinion in Dobbs v. Jackson Women’s Health Organization:
The Supreme Court has voted to strike down the landmark Roe v. wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
Nor did Politico stop at reporting what the draft purportedly said. Had that happened, I might have been skeptical, saying that this was just a rumor as the Court sought to run a potential decision up the flagpole to see the response. Instead, Politico uploaded the draft, which is already formatted in the normal fashion for Supreme Court opinions.
This is the real deal. (Since the cat’s out of the bag, I’ll include the Scribd transcript at the end of this article.)
Publishing a draft decision must always be wrong because it instantly politicizes the Supreme Court’s actions by allowing politicians and members of the public to put pressure on the Court to change its opinion before it becomes final. The SCOTUSblog Twitter account sums up accurately how appalling this is:
Currently, my best guess is that a leftist somewhere along the pipeline (justices, clerks, secretaries, the printing company, etc.) leaked the opinion to intimidate the Supreme Court into backing off from its planned decision. If I remember correctly, back in 2012, when the Supreme Court was considering Obamacare’s constitutionality, a rumor went around that the Court would strike it down. Then Justice Roberts upheld it (on entirely spurious grounds, I might add).
My sense in 2012 was that the Democrats, upon hearing the rumor, let the justices know that the Court would face serious consequences (i.e., court-packing) if it were to proceed with that decision. So the Court reversed course. Perhaps that thinking was behind yesterday’s leak.
Certainly, Democrats responded with the fury and hysteria one would expect. Bernie Sanders instantly demanded that Congress act and, if necessary, end the filibuster to do so:
Biden is already preparing a speech:
Naturally, the usual hysteria ensued: women are chattel; they’ll all die; and, of course, it’s raaay-cist!
As was to be expected, leftist mobs are already forming to intimidate the Supreme Court into changing its decision:
So now to the second point: Is it a valid decision? Yes. Absolutely, both legally and practically.
There is no honest way to say Roe v. Wade is constitutionally sound. Instead, it’s a steaming pile of bovine fecal matter. It has ludicrous science, relies on emotion, and reads nonexistent rights into the Constitution. Justice Alito brutally lays it out:
Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).
Alito continues in that vein, savaging the case, and even quotes Laurence Tribe, the fanatically leftist law professor, who said in 1973 that Roe was “not constitutional law” and didn’t even try to be. (Tribe, of course, opposes the current decision.)
Ultimately, says Alito, “Roe was egregiously wrong from the start.”
The decision does not end abortion in America. Instead, it does what the Court should have done in 1973: it returns the matter to the states. “It is time,” writes Alito, “to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Abortion will continue to exist in blue states and be ended or limited in red states. Fifty laboratories of democracy will function, as the Constitution intended (see the 10th Amendment), with abortion being decided according to community norms. Indeed, under that standard and contra Bernie Sanders, one can argue that Congress cannot impose abortion nationwide.
Regarding the claim that the decision is racist because it will affect minorities most, the decision is actually anti-racist. Margaret Sanger, who founded Planned Parenthood, was an ardent eugenicist who yearned to eliminate the “unfit” in America through birth control and abortion. There’s a reason Planned Parenthood parks itself in minority neighborhoods.
Year after year, in New York City alone, more Black babies are aborted than born. It’s estimated that more than 20 million Black babies have been aborted since 1973. It’s a weird “racist” opinion that lays the groundwork for more minority babies to be born rather than fewer.
Additionally, I’ve long thought that part of the murderous criminality in urban Black communities relates to all those abortions. If mothers routinely kill their babies, why should anyone else living there value life?
Finally, forget about the hysteria about dead women. This is not the 1950s. Babies out of wedlock are normative, not shameful. Also, birth control is freely available (and nothing will stop the abortion pill). Plus, it’s easier now than it was then to travel to a state where abortion is unlimited.
If the Supreme Court has the courage to face down the mob, this is one of the most constitutionally sound opinions since Heller reinstated the Second Amendment. It will return some normalcy to America. It’s also part of what I believe is a very large, slow U-turn that sane people in American institutions (and American homes) are making as they watch the Democrat party race down a path of insanity, immorality, and incoherence.
This article first appeared in americanthinker.com