Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization is precisely the kind of undaunted rebuke of Roe v. Wade toward which the Pro-Life movement has long labored. He confronts every weakness of Roe, rebuts every justification to keep it, and advances manifold reasons to discard it. Especially hopeful is the likelihood that four other justices agree with his conclusion. Roe must be reversed, and abortion policy returned to democracy. But Justice Alito’s opinion is not final, and justices often wobble and flip before the Supreme Court renders a ruling.
Roe has harmed our nation immensely—culturally, legally, and politically. In the name of abortion, respect for the value of life has waned, ordinary legal procedures have fallen out of favor, and toxicity within political discourse has intensified. The existence of Roe and its primary successor, Planned Parenthood v. Casey, have kindled many ruinous consequences, none more disastrous than the tens of millions of lost lives in the absence of deliberation, debate, and democracy. Dobbs could serve as an overdue correction.
Reading the draft opinion leads to only one predominant conclusion: Justice Alito delivered. His draft opinion amounts to 67 pages of analysis and opinion and 31 pages of appendices of state laws banning abortion. It is worth covering the highlights and broader themes.
First, Justice Alito tackles Roe’s legal merits directly, dedicating thousands of words to a scrupulous historical analysis. Why dive into history? In part, he wants to refute Roe’s fabricated survey of historical laws governing abortion. But more concretely—and much more critically—he endeavors to show that pre-Roe America has never understood elective abortion to be an unwritten right.
Roe and other Supreme Court decisions rest on the notion that the people possess more rights than are articulated within the provisions of the United States Constitution. Few dispute this claim. After all, our government does not grant rights but rather recognizes rights endowed by our Creator. Determining what those rights are within the confines of constitutional law is an often contested exercise. But an objective place to start is by examining our nation’s historic debates and documents to see if we have long understood a supposed right to be just that.
On abortion, Justice Alito answers without equivocation:
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest day of the common law until 1973.”
Next, Justice Alito examines whether Roe is worth keeping even though it is plainly wrong. Stare decisis, or standing by previous decisions, is not a meritless legal principle. Ensuring stability and not destroying reliability is sensible—a point that is not strongly challenged. However, as Chief Justice John Roberts has noted, stare decisis is “not an inexorable command.” Continuing legal and moral abominations in perpetuity just to guarantee consistency is foolish and destructive. The Supreme Court’s constitutional duty to render justice in our country should not entail passively affirming gross injustices. If any case fails to meet the promises of stare decisis, Roe certainly qualifies. Justice Alito agrees.
“Stare decisis. . . . does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
These words, while true, are not final. Internal discussion and drafting of opinions do not end until the Court issues its ultimate decision. Justices question their initial positions. They grow squeamish. Votes flip. All of that is pretty common knowledge, but the unique aspect here is that we have current inside intel in the middle of this process. While we are winning pretty late in the game, any celebration now is premature and will only exacerbate future disappointment.
Some Supreme Court vote flips live in conservative infamy. Chief Justice Roberts voted to uphold Obamacare in 2012 (with some impressively duplicitous logic) after he was an initial vote against the controversial health care law. More pertinent for Dobbs is a flipped vote in Casey to an uphold-Roe position from a reverse-Roe position, which needed one more vote. These instances are not isolated; they are just those about which the public is aware.
Politico’s article that contained the leak confirmed Justice Alito still has votes from the other conservatives minus Chief Justice Roberts. If the votes hold until Dobbs is final, Roe will be gone, abortion will return to democratic processes, and Texas will be free of legal elective abortion, though the battle to protect and promote Life will continue. We must pray that the justices deliver. Justice Alito’s opinion is a legal masterpiece—but it has not yet been so ordered.