Editor’s Note: The following article was published on the website of The Catholic Esquire. It has been rep-published with permission from the author who goes by the pen name Marcus Veritas.
The Supreme Court’s majority opinion in the Dobbs vs. Jackson’s Women’s Health abortion case penned by Justice Samuel Alito has been leaked to the press. This is still not the official or final decision but has been confirmed to be authentic. The leak was completely unprecedented and places the safety, in my opinion, of several justices in grave danger.
What I want to do here is simply give you a summary of Justice Alito’s opinion. I have significant legal experience as a practicing attorney and as a constitutional law college level instructor studying abortion and other constitutional law issues. I come to this from a traditional Catholic point of view, but I want to provide an objective summary for the reader, although I will provide my own thoughts on the decision at the end. This is THE most important human and civil rights issue in this nation (if not the world) so it is important to have some background in order to speak intelligently.
This story is developing and the demonic spirit engulfing the nation right now is at an all-time high. Continue to pray for an end to abortion and safety of the justices on the Court who had the moral courage to do the right thing.
The Mississippi Law
The Mississippi law in question provided that “except in cases of medical emergency, or in the case of a severe fetal abnormality” a person shall not knowingly induce an abortion when the gestational age of the “unborn human being” is greater than fifteen (15) weeks. While the 15-week line is a few weeks short of the traditional “viability” line, which is important under the Roe and Casey precedent, it still provides for medical exceptions even if the problem is a severe fetal abnormality (and not necessarily a problem with the mother).
Roe and Casey Background
First, a quick history of the Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992) landmark abortion decisions. In Roe, the Court found a fundamental right to end a pregnancy (i.e. abort the baby) in the United States Constitution, particularly under the Fourteenth Amendment. Acknowledging individual states may have some interest in protecting viable unborn babies and the health of the mother, the Court essentially concocted a scheme by which future courts would evaluate abortion regulations based on the trimester the woman wanted to have an abortion.
The key legal line was the end of the second trimester because that is when the Court thought unborn babies achieved “viability.” The Roe court held that states could not impose any legal restrictions on abortions prior to a baby being “viable” unless the health of the mother was at risk (second trimester only). The practical effect of Roe was to strike down almost all laws in any state that imposed some level of restriction on abortion at the time.
In Casey, the Court ultimately upheld Roe but called the underlying reasoning into question. Relying on the principle of stare decisis, the judicial doctrine that the Court should adhere to its prior precedent when rendering a decision, it upheld the core principle in Roe that women have a constitutional right to kill their unborn babies. However, it did away with the trimester framework and held that states were not allowed to impose an “undue burden” on that right to abortion. The Court never really gave specifics as to what constitutes an “undue burden.”
Alito’s Key Quotes in Dobbs
In the Dobbs case before the Court now, the issue is whether Mississippi’s law prohibiting abortions before the fifteenth week of gestation violates the Constitution. The fifteenth week being a point in time prior to “viability” according to current medical opinion. The State of Mississippi asked the Court to overturn the rulings in Roe and Casey. And Justice Alito, writing for the Court’s majority opinion, did exactly that.
The money in the bank paragraph is the following:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion and no such right is implicitly protected by a constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth 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.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)…The right to abortion does not fall within this category.”
The second money quote provides:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision had damaging consequences. And far from bringing about national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
The rest of the opinion dives into the reasoning behind these conclusions. I will just mention some of the highlights that were extremely relevant to the opinion.
Highlights of the Dobbs Majority (Draft) Opinion
- Justice Alito addressed the meaning of “liberty” as understood in the context of the Fourteenth Amendment. Until the late twentieth century, a “right” to abortion was entirely unknown in American law. No state law or constitutional provision ever contemplated such a thing. In fact, most states outlawed abortion completely. At the time the Fourteenth Amendment was ratified in 1868, three-fourths all of the states made abortion a crime at all stages of pregnancy. Justice Alito even traced English common law back to the 13th century to show abortion was always considered a crime. This is relevant because under current Court precedent, any implicit right in the Constitution not expressly stated must be grounded in some longstanding legal tradition.
- Alito addressed the famous statement in Casey, well known to Christians because it rejected the idea of objective Truth and morality: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Alito says an individual may be free to think and speak according to their beliefs, but they are not free to necessarily act on those beliefs. He draws the distinction between license and liberty here but does not directly counter the fundamental flaw in the statement itself which is that YOU DO NOT have the right to define your own Truth, even in your own mind. Truth is truth and objective reality is not subject to personal whims.
- Alito addressed the case precedent relied upon in Casey, such as the cases that found a constitutional right to purchase contraception (Griswold and Eisenstadt). Rather than attack these cases for their fundamental legal and moral flaws, Alito says those cases are different and not relevant to abortion because those cases deal with “potential” life rather than “life of an unborn human being.” None of those cases, Alito says, deal with the critical question imposed by abortion.
- Alito acknowledged there may be sound public policy reasons for allowing or prohibiting abortions but concludes that is an issue for elected representatives to deal with and not the role of the Court to make public policy.
- Alito acknowledged the role of stare decisis, case precedent, when deciding cases but agreed with Justice Story from 1816 when he said that when it comes to the Constitution, the “great charter of our liberties,” it is more important to have an issue settled “right” than just being settled. Alito notes some of the most important Supreme Court cases have overruled prior precedent, such as Brown v. Board of Education (overruling separate but equal in the classroom), so stare decisis certainly is not a rule set in stone.
- Alito spends much time dissecting the underlying reasoning and flaws in the Roe decision, which is interesting but not necessary to recap every point here. The gist of it is that the Roe decision was poorly reasoned, relied on incorrect historical information, provided no workable legal framework, and did nothing but inflame the political debate, which should more appropriately be handled by elected officials and not the judicial system. All of these reasons justify deviating from the case precedent set in Roe and Casey.
- Alito attacked the “viability” argument presented in Roe. The Roe court never explained why viability should be the point of no return when it comes to abortion regulations. If the state has a compelling reason to protect life after viability, why doesn’t it have the same compelling interest to protect life before viability? The Court essentially created an arbitrary line that has little support among philosophers and ethicists. The other obvious problem is that this arbitrary line has nothing to do with characteristics of the unborn baby. Other factors play a role in viability, such as the quality of neo-natal care that have nothing to do with the age of a fetus.
- The problem with Casey, according to Alito, is that the Court never addressed these fundamental problems with Roe and only made the legal framework more confusing and difficult to apply. Casey just added to the confusion by imposing new ambiguous and vague lines by requiring courts to determine the effect of abortion regulations on women (i.e. whether there was an undue burden), which is always going to differ depending on the factual circumstances of the individual woman. In other words, Alito is saying that Casey made the law difficult, if not impossibly, unworkable on a practical level.
- Alito rejected the claims that overturning Roe and Casey would affect the holdings in other cases involving marriage, homosexuality, contraception, etc. Alito reiterated that abortion is entirely a different issue and restated that overturning Roe will not affect these other decisions.
- Going forward, state abortion regulations will be subject to rational basis review because there is no fundamental constitutional right to have an abortion. Individual states may regulate abortion for legitimate reasons. As such, any law regulating abortion is entitled to “a strong presumption of validity.”
- Mississippi’s law was rationally based and therefore fell within the purview of that state’s legitimate interest to regulate abortion procedures and was upheld.
Some Initial Observations
Alito provides a very well-reasoned, articulate opinion with ample legal and historical support to support his conclusions. I appreciate the boldness and clear dissection of both Roe and Casey—exposing the logical and legal weakness of each of these prior decisions that have been used to force states into allowing the killing of unborn babies. From a standard American law school academic point of view, this opinion contained everything necessary to destroy Roe and Casey and did so by hitting on all the key errors, leaving little wiggle room for the pro-abortion advocates when it comes to future constitutional arguments that may try to resurrect some form of Roe and Casey.
Bottom line in this decision is that there is no fundamental right under the U.S. Constitution to kill your unborn child. Period. End of story. Any state law dealing with abortion is going to be subject to the same constitutional rules as any other law would be that does not deal with fundamental rights.
I did not detect any hidden gems or novel ideas in this opinion. This decision is exactly how I think most legal scholars would expect a decision overturning Roe to look like.
For my part, I was hoping for a bit more, which I know was highly unlikely. As a practicing Catholic, I believe that every human being from the moment of conception has a right for an opportunity to live and consequently every society owes a duty of protection to those babies, even from their own mothers if necessary. I was hoping the opinion would give us a little bit more than just “Okay states, do whatever you want—not our issue anymore.”
Specifically, I would have liked the Court to address the fundamental rights of the unborn babies. As noted in a prior post, Colorado recently passed a law specifically denying the rights of unborn babies to live—so we already know the pro-aborts have no problem whatsoever with explicitly denying any rights to unborn babies. Even under this decision as written, those types of laws could be upheld.
My other problem with the decision is that Alito seemed to shut the door on any opportunity for attack on other erroneous “privacy” based decisions such as Obergefell (right to homosexual marriages) and Griswold (right to contraception). Alito went out of his way to make sure nothing in this opinion should be construed as chipping away at these other constitutional fundamental “rights,” which also have no basis whatsoever in the Fourteenth Amendment.
I understand marriage and contraception were not before the Court here and there is no need for Alito to go off on tangents that would distract from the outcome of this case. But he didn’t need to be so bold in his assessment that the reasoning in those cases have nothing to do with Roe. Because, in fact, they do.
The original marriage and contraception cases prior to Roe supplied the legal reasoning the Court used in Roe. Alito’s insistence that those cases are not relevant to abortion simply makes future efforts to overturn those egregious cases more difficult.
Overall, I do believe that this decision will ultimately result in protecting millions of babies from slaughter. Not all of them for sure. Nor will the abortion debate, in any way shape or form, end. In fact, the debate is only likely to heat up and become more intense, so steel your armor for the demons to come out. But it is a solid move in the right direction.