“We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Those words from a draft majority opinion in Dobbs, authored by Justice Samuel Alito in February and reported by Politico, would prove the most consequential words written by the Court in 50 years.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)
While overturning Roe would not outlaw abortion nationwide – as some hyperbole may suggest – it would restore authority to the states to determine abortion laws in accordance with the will of the people they represent.
Three important developments would occur should the draft holding in Dobbs become the actual holding of the Supreme Court: the aberrational abortion laws of the United States would cease in some jurisdictions; the unsound and roundly criticized legal reasoning of Roe would be undone; and America’s abortion laws would be reconciled with the mainstream opinions of the American public.
First, overturning Roe would mean that, at least in some jurisdictions, America would no longer be the world’s pariah when it comes to our abortion laws. Currently, America is one of seven countries in the world that allows elective abortion after 20 weeks.
As Justice John Roberts appropriately noted during the Dobbs oral arguments, “When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea.”
Good company, indeed.
Next, the nonsensical legal reasoning of Roe would be corrected. Indeed, Roe has been criticized by jurists of varying judicial philosophies.
Liberal legal scholar Laurence Tribe called Roe a “verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Justice Ruth Bader Ginsburg – undeniably a proponent of abortion rights – called Roe “heavy-handed judicial intervention.”
Without a doubt, an invented right to abortion vaguely embedded in the Fourteenth Amendment with no historical precedent or textual foundation is most certainly hard to justify.
Finally, while abortion advocates suggest that America is a pro-abortion nation, when the extreme rhetoric and exaggerations are stripped away, Americans substantively agree with the Mississippi abortion law at issue in Dobbs, which bans most elective abortion after 15 weeks.
A 2021 Associated Press-NORC Center for Public Affairs Research poll found that “65% said abortion should usually be illegal in the second trimester [after 12 weeks], and 80% said that about the third trimester [after 24 weeks].”
In other words, when the so-called “controversial” Mississippi law is stripped down to brass tax and bare bones, the American public expresses support.
And perhaps therein lies the problem for the abortion industry. When Roe and its twisted, contorted legal reasoning set the country ablaze, it did so at a time when states appropriately were deciding the best way forward on the issue.
Why stop the process in favor of perverse legal reasoning that took the decision from the People and put it in the hands of nine justices – six of whom invented a constitutional right out of wholesale cloth?
If America indeed supports abortion – as the left would undoubtedly have you believe, why not roll back Roe, which even Ginsburg acknowledged “halted a process that was moving in a reform direction and thereby… prolonged divisiveness and deferred stable settlement on the issue.”
Only time will tell if Politico’s obtained draft comports with reality. Rightfully, many are questioning what is the first leak of a draft Supreme Court opinion in modern history.
It is a regrettable development indeed, and unlike some on the left have suggested, no, the purported “brave clerk taking this unprecedented step of leaking” should not be praised.
But setting this egregious procedural issue aside, if Roe is indeed overturned, 50 years of legal fallacy will finally be undone.
The 62 million lives lost to abortion can never be restored, but a scourge on America’s conscience will be no longer.
Kayleigh McEnany serves as a co-host of “Outnumbered” (weekdays, 12 PM/ET) on Fox News Channel. Prior to joining FOX News Channel, McEnany served as White House Press Secretary under former President Donald Trump.