Justice Alito’s masterful draft opinion calling for Roe’s overturning is worth a second and third reading

By Dave Andrusko

No surprise that the Abortion Industry is trying to argue that if Roe v. Wade is overturned, other privacy rights will be lost as well. However, this was specifically addressed in Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, which was leaked to Politico.

First, the reason why “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 14th 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 tradition” and “implicit in the concept of ordered liberty.” The right to abortion does not fall within this category. 

Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the 14th Amendment was adopted, three quarters of the States made abortion a crime – at all stages of pregnancy. 

Second, what distinguishes Roe?

The abortion right is also critically different from any other right that this Court has held to fall within the 14th Amendment’s protection of ‘liberty.’ Roe’s defenders characterise the abortion right as similar to the rights recognised in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being’.

There are any number of critics of Justice Alito’s reasoning, but they do not forthrightly grabble with the “fundamental difference”: a “fetal life” is destroyed in an abortion.

Perhaps abortion supporters have insisted for so long that the unborn child is mere “tissue” located “within the pregnant woman’s body” that they have blocked this truism out of their minds. 

While we are here, let me repeat what Justice Alito said in the very next paragraph:

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s 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. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ That is what the Constitution and the rule of law demand.

Abortion is qualitatively, fundamentally, different from matters such as intimate sexual relations, contraception, and marriage.” To continue to reaffirm Roe’s “abuse of judicial authority” will only serve to continue to “enflamed debate and deepened division.”