A leaked copy of the draft opinion in the Dobbs v. Jackson Women’s Health Organization case reveals that the U.S. Supreme Court has voted to overturn the 1973 Roe v. Wadeand 1992 Planned Parenthood of Southeastern Pennsylvania v. Caseyabortion decisions since there is no constitutional basis for abortion. This SCOTUS decision concerns a Mississippi law that prohibits abortions after 15 weeks gestation, except in a medical emergency and in cases of severe fetal abnormality. According to the draft, the Supreme Court will send the abortion issue back to the states.
The superb quality of the draft presents compelling evidence that Roe was wrongly decided from the start. The 98-page draft opinion by Justice Samuel Alito is masterfully written with a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes.
The U.S. Supreme Court sent out a press release yesterday regarding the leaked document. Chief Justice John Roberts provided the following statement:
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here. I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
In the draft labeled the “Opinion of the Court,” Justice Alito wrote the stunning opinion that states that Roe v. Wade is unconstitutional and was “egregiously wrong from the start.”
Stare decisis is the principle that precedent is normally followed in legal cases except when it was previously wrongly decided. The Supreme Court acknowledges that some of the most important decisions have overruled precedents. For example, the High Court addresses the wrongful continued acceptance of the cases of Roe and Casey abortion decisions.
The High Court wrote, Planned Parenthood v. Casey “concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s ‘central holding’—that a State may not constitutionally protect fetal life before ‘viability’—even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law. . . . Paradoxically, the judgment in Casey did a fair amount of overruling…But the three Justices who authored the controlling opinion ‘called the contending sides of a national controversy to end their national division’ by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. . . . As has become increasingly apparent in the intervening years, Casey did not achieve that goal.”
“The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ . . . [A]bortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what the decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being,’” wrote the Court.
The Justices note that the Constitution provides no textual right to abortion. In the draft opinion they state, “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text. . . . Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is a part of a right to privacy, which is also not mentioned…[Roe’s] message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The CaseyCourt did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.”
“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.”
In the conclusion of the draft opinion, the High Court washes its hands of the abortion issue and sends it to the states to address.
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Liberty Counsel filed an amicus brief on behalf of a diverse group of organizations, churches, religious leaders, and individuals, including 70,000 African American and Hispanic churches and millions of African Americans and Hispanic Americans across the United States, who are asking SCOTUS to overturn Roe because legalized abortion is unconstitutional, violates the right to life, and supports racist eugenics. The amicus brief is cited in the draft opinion at footnote 41.
Liberty Counsel Founder and Chairman Mat Staver said, “The Supreme Court is not a political arm when it is bound by the original meaning of the Constitution. It becomes political only when it issues opinions like Roe v. Wade that have nothing to do with the Constitution. The deaths of more than 63 million unborn babies are on our hands since 1973, and we must stop this genocide and return to the original meaning of the Constitution.”