It is not my usual practice to write on political issues in my blogs. However, because of the moral significance of abortion and recent events I feel compelled to comment at this critical juncture in American history. On January 22, 1973, the Supreme Court of the United States (SCOTUS) announced a 7-2 decision that legalized abortion in every state and territory of the United States. The case commonly known as Jane Roe (AKA: Norma McCorvey), et. al. v. Henry Wade (then D.A. of Dallas County, Texas) was one of the worst decisions in the court’s history. The court essentially concluded that any law in any state or territory that attempted to restrict abortions before the third trimester of gestation was patently unconstitutional. Conversely, it established that abortion was a woman’s constitutional right and that no state could outlaw or restrict it before the third trimester.
Another case, decided by SCOTUS the same day, January 22, 1973, titled Doe v. Bolton, essentially had the effect of eliminating the third trimester restriction of Roe v. Wade. That decision asserted that a state could not stop the terminating of any pregnancy that was deemed by a doctor as dangerous to the health (by any definition- mental, physical, or whatever) of the mother. Since those fateful verdicts, more than 63 million legal abortions have been performed in the United States and its territories.
As you may know, a draft opinion written in February of 2022 by Justice Samuel Alito was illegally leaked to Politco, an online Washington news journal, which published it online in early May. SCOTUS security is now urgently investigating the leak’s source. (Read it here: https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504 ).
The leaked document is a first draft of an opinion for presentation if and when at least five out of the nine current SCOTUS Justices vote to overturn Roe v. Wade. Many observers are convinced that such a decision is forthcoming this year. The opinion explains in great detail the constitutional reasons why the court voted (presumably) to reverse the Roe v. Wade ruling.
The main argument contained in Alito’s proposed treatise is that the earlier 1973 court erred in declaring that abortion is a constitutionally protected right and, thus, the ruling should be reversed. This would not be unprecedented as several times in history SCOTUS has overturned earlier decisions later deemed incorrect (eg.: the 1896 Plessy v. Ferguson case, legalizing school segregation, was reversed by the 1954 Brown v. the Board of Education ruling).
Here is a key passage in Alito’s leaked opinion.
“We hold that 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 Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must have been ‘deeply rooted in the Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ Washington v. Glucksberg. 521 U. S. 702, 721 (1997) (internal quotation marks omitted).”
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.”
(THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL, PETITIONERS v. JACKSON WOMEN’S HEALTH ORGANIZATION, FT AL. ON WRI OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February_ 2022). JUSTICEALITO delivered the opinion of the Court. Page 5)
Justice Alito’s reasoning is absolutely correct. A right to abortion can no where be found in the Constitution of the United States. Neither that word nor the concept appear anywhere in the text (nor does anything about marriage). The argument that it can be found in the Fourteenth Amendment, or any other amendment for that matter, is without merit. That loose interpretative method demonstrates a lack of real regard for the original intent and moral principles of the founding framers of the Constitution. Pray with us that Justice Alito’s opinion, in its final form, will remain faithful in principle to his first draft and will soon become an established dictum of SCOTUS.