By Dave Andrusko
When a friend forwarded this to me, I’ll be honest. I was so busy putting together the July issue of National Right to Life News that I just put it aside. That was a mistake. I believe after reading Prof. Akhil Reed Amar, you’ll be more readily able to handle critiques of the Supreme Court’s decision to end Roe.
It’s an op-ed for the Wall Street Journal, written in May, well in advance of the Supreme Court’s blockbuster decision putting Roe out of its misery. It’s headlined, “The End of Roe v. Wade.”
The piece was written by a professor of constitutional law at Yale, a liberal, and “a Democrat who supports abortion rights but opposes Roe.”
Amar’s argument (and not our issues) is that he believes that the leaked memo–written by Samuel Alito–was “vindication for a range of liberal priorities.” We are interested in his critique of Roe, which is first-rate, and his defense of the arguments Justice Alito made in Dobbs v. Jackson Women’s Health Organization.
It can be read in its entirety at https://www.wsj.com/articles/the-end-of-roe-v-wade-11652453609?page=1.
We’ll start with his conclusion:
The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.
Let’s work our way through a few of his insights,
Point #1. Precedents are to be honored, not treated as immutable. ”Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress. … Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.”
Point #2. Roe fits that description thoroughly. “Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft.”
Point #3. Justice Blackmun was sloppy (to be charitable). “In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of ‘life, liberty or property, without due process of law’—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s ‘due process’ argument textual gibberish.”
There’s much more. The Court came to its senses—after 49 years. Alito’s brilliance was most assuredly on display when he took time out to critique the dissenters.
He wrote, “So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” There are occasions when past decisions should be overruled, and as we will explain, this is one of them. ”
Take the time to read Justice Alito. You’ll come away prepared to make the case that the majority was on solid ground in Dobbs v. Jackson Women’s Health Organization.
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