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On Monday night, Politico released a copy of what appeared to be a leaked draft of a Supreme Court decision that would overturn Roe v. Wade. The following day, Chief Justice Roberts confirmed the authenticity of the draft while condemning the leak and promising an investigation.
The leak undoubtedly weakens the Court by undermining trust among justices, clerks, and staff members. The leaker’s choice to betray the confidence of colleagues will likely have negative institutional effects for many years. In this post, however, I want to highlight a few points about the substance of Justice Alito’s draft majority opinion.
First, and most obviously, it is great news that when this draft was initially circulated in February, a majority of the justices were ready to overturn Roe v. Wade. According to Politico’s sources, that majority still exists as of this week.
Almost 50 years ago in Roe, the Court struck down state laws restricting abortion and instituted its own complex trimester framework for abortion regulation. The Court held that there was a fundamental right to an abortion that was protected by the Constitution, most likely through the 14th Amendment’s Due Process Clause. Twenty years later, in Planned Parenthood v. Casey, the Supreme Court preserved what it called the “central holding” of Roe: the protection of the right to an abortion before the point of viability. In this year’s case, the Court is considering whether to uphold a Mississippi law that bans most abortions after 15 weeks gestation. Fifteen weeks is earlier than any definition of “viability,” and so this Mississippi law runs squarely against the Court’s decisions in Roe and Casey. After oral argument in early December, it seemed likely that there would be at least five votes (a majority) to overturn Roe. Still, it is a great relief to know that there were in fact five votes to overturn Roe and Casey when the Court gathered in conference to assign the draft opinion.
Second, the draft opinion gives no impression that any “third way” between upholding the Mississippi law and overturning Roe and Casey had been seriously proposed by any justice as of February.
During oral argument, the chief justice seemed to be trying to solicit suggestions from the attorneys on how to keep Roe by preserving some kind of right to abortion while still upholding the Mississippi 15-week ban. This was and is a tall order, since the “central holding” of Roe according to Casey is the viability standard which cannot easily be squared with a 15-week ban. Alito emphasizes that none of the attorneys thought that the Mississippi law could stand without overturning Roe and Casey, but does not devote a lot of space to this argument. If another proposal to preserve Roe while upholding the law had already been informally floated by one of his colleagues, one might expect Alito to have devoted more of his argument to it. This might be an indication that the chief justice is still open to siding with the majority in the end.
Third, Alito takes particular issue with the Roe Court’s use of history to justify its decision.
Two tests that the Court has used in the past to decide whether or not unenumerated rights should be protected by the due process clause of the 14th amendment are 1) whether the right is deeply rooted in our nation’s history and tradition, and 2) whether the right is implicit in the concept of ordered liberty. In Roe, the Court relied on tendentious historical materials that were produced by allies of the abortion industry. Notably, the Court’s history almost completely ignored the contributions of Christianity in shaping attitudes toward abortion in the ancient and medieval world. Instead, the Court’s history treated anti-abortion laws as late-19th and early-20th century aberrations from the much more lenient attitude of the ancient and early American political world.
I say that the Court almost completely ignored the contributions of Christianity because Roe does include a fairly long discussion of Christian teaching on the timing of “quickening” that seems intended to make fun of early Catholic thinkers’ reliance on Aristotle’s primitive understanding of prenatal life. In any event, Alito’s draft opinion includes a long section that corrects the historical record and shows that abortion restrictions were commonplace at the time the 14th amendment was adopted.
Fourth, Alito’s draft opinion is modest in that it leaves abortion policy to the states to decide. By overturning Roe v. Wade (if this is in fact what happens!), the Court will not be banning abortion but only saying that states are now free to adopt abortion restrictions that had been prohibited under the Roe/Casey framework. It does not go so far as to say that the 14th Amendment’s due process clause–protecting the right to life–combined with the equal protection clause forbid states from permitting abortion.
Finally, despite the modesty of Alito’s opinion, it still subtly illustrates the dignity of the unborn in several striking ways.
He pointedly refuses to adopt Roe’s language of “potential life” as his own. He only employs these words in quotes and always pairs this strange phrase with the more accurate language of the Mississippi statute: “unborn human being.” The draft recognizes that a crucial difference between Roe and other Supreme Court precedents that affirmed unenumerated rights is that the “right” in question in Roe involves the fundamental question of whether the unborn are human beings worthy of protection at every stage of development. Alito also discusses the implausibility of the viability standard for marking the point at which the right to an abortion would come into play. Although his discussion is ostensibly limited to a critique of Roe/Casey’s employment of the viability standard without much in the way of a justification, Alito’s analysis might also sound to a pro-life reader like a good explanation as to why human life should be protected from the moment of conception since there is nothing that fundamentally changes for the unborn at the point of viability.
Even though the draft is modest, there are at least faintly perceptible undertones of a moral argument underlying Alito’s constitutional analysis. The majority goes out of its way to affirm that respect for and preservation of life at all stages of fetal development would be a sufficiently rational basis for any state to restrict abortion without interference by the Court in the future.
We can hope that the five justices who initially voted to overturn Roe will hold steady until the official decision is released sometime between now and the end of June. Perhaps, Chief Justice Roberts will also be persuaded to overturn Roe in the end as a sixth vote. Pro-lifers should certainly prepare themselves for a post-Roe world in which the political struggle to protect human life from conception to natural death will move to Congress and the states, beginning with Kansas’s Value Them Both referendum on August 2.