Monday evening POLITICO posted a bombshell report that the Supreme Court is about to overturn the Roe v Wade and Casey decisions which created the federally guaranteed right to an abortion.
The document was labeled a “1st Draft” of the “Opinion of the Court” in a case challenging Mississippi’s ban on abortion after 15 weeks, a case known as Dobbs v. Jackson Women’s Health Organization.
The Associated Press opined that draft opinion in effect states there is no constitutional right to abortion services. It would allow individual states to more heavily regulate or outright ban the procedure.
“We hold that Roe and Casey must be overruled,” it states, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The draft opinion strongly suggests that when the justices met in private shortly after arguments in the case on Dec. 1, at least five — all the conservatives except perhaps Chief Justice John Roberts — voted to overrule Roe and Casey, and Alito was assigned the task of writing the court’s majority opinion.
As the AP noted, votes and opinions in a Supreme Court case aren’t final until a decision is announced or, in a change wrought by the coronavirus pandemic, posted on the court’s website.
In the aftermath of the leak even renowned legal scholars and high-ranking politicians are pretending the purported draft SCOTUS opinion bans abortion in the US. Even if it's real, that is not what it says.
So, what’s going to happen and what does “1st Draft” actually say?
The paragraph that most commentators have latched onto is this one:
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. 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 traditions" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
And that is important because it specifically rebuts the notion that somewhere in the “penumbras” of the Constitution the right to an abortion lurks.
Likewise, Justice Alito’s draft opinion also knocks down the judge-made doctrine of stare decisis, a favorite shibboleth of Justice John Roberts. As Justice Alito wrote in his draft opinion, “Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority.”
But here’s what we think is the crucial point in Justice Alito’s draft and that is a firm rejection of “freewheeling judicial policymaking.”
On occasion, when the Court has ignored the "[a]pprpriate limits" imposed by "respect for the teachings of history," Moor, 431 U.S., at 503, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45, 25 (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term "liberty." When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
As the reporters at POLITICO noted, no draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
A person familiar with the court’s deliberations told POLITICO that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.
As the clock ticks down toward the end of the Court’s term and the release of the final ruling in the Dobbs case we can expect the pro-baby killing Left to engage in a massive effort to intimidate the Court into changing the outcome of the case. However, no matter how violent or outrageous their tactics become they can’t rebut Justice Alito’s tightly reasoned demolition of the Roe and Casey decisions, and the ultimately correct ruling that regulation of abortion must be returned to the states and their elected legislatures.
Supreme Court leak
Roe v. Wade overturned
Chief Justice John Roberts
Justice Samuel Alito
Donald Trump appointees
Dobbs v. Jackson Women’s Health Organization
Planned Parenthood v. Casey