Alito’s draft opinion on abortion is clear and courageous
Are we really shocked that the draft opinion in the most significant Supreme Court case in 50 years was leaked? We certainly should be, as the leak is, to quote legal scholar Carter Snead, a “shocking act of betrayal and a breathtaking breach of ethics.”
To those who don’t follow Supreme Court politicking closely, the leak matters because it is an act of corruption of the highest order, one that appears to have been done to exert political pressure on the justices to change their opinions.
The justices represent the one branch of government that was designed to be independent of political pressure. The leaker strikes at the heart of the American system of government and its design.
Yet, the leak feels more like the death rattle of a movement that has fought to keep decisions about how to regulate abortion out of the American people’s hands for generations.
Alito demonstrates legal courage
The leak also is a misfire. If anything, the leak has given the American people a preview of the kind of constitutionalism that voters crave and a glimpse of the legal courage we have yearned for.
The draft opinion’s greatest gift is its clarity. “We hold that Roe and Casey must be overruled,” writes Justice Samuel Alito. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Perhaps the greatest thing to be feared from a ruling in Dobbs v. Jackson Women’s Health Organization was another muddled opinion full of lofty language and lacking legal clarity that would have dragged out the years of legalized abortion for many decades more.
The fight over abortion has raged precisely because the court, both in Roe v. Wade and Planned Parenthood v. Casey, hijacked the issue from the American voters and left the lower courts and legislatures with an illegible road map for implementation. That legacy has gnawed away at the fabric of our culture and has wormed its way into nearly every issue in politics.
We need a clean break from Roe, and the leaked opinion gives us the way to make that break.
Dismantling legal arguments for abortion
The opinion dismantles with great precision the many sagging lies that have upheld Roe for nearly half a century. It obliterates the viability standard, for example, as an arcane one founded on rusty science and on weak moral reasoning.
It soundly rejects the notion that stare decisis protects bad law forever and quotes from countless scholars on the left to make the case. And it rebukes the assertion that societal reliance on a bad law is grounds for permanence, pointing out that the same reasoning is what the court first used when it “blessed racial segregation.”
But perhaps most notable is the courage that undergirds the writing. Justice Alito writes: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey.
“And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
If the leakers think that a man who writes like this and the justices who stand boldly behind his words will be cowed by the wails of the elite, by the theatrics of red capes and by angry hashtags, then they betray their own blind desperation.
Nonetheless, the leak has given Americans the gift of seeing the truth come tearing out of the halls of justice. It’s truth we are ready for.
And it’s truth we desperately need if we are to begin the work of building up a culture where women can truly flourish without curtailing the civil rights of an entire class of people.
Ashley Mcguire is a senior fellow with The Catholic Association.