Five justices of the Supreme Court reputed to be poised to overturn Roe v. Wade and Planned Parenthood v. Casey are under attack—as is the very institution itself—after a saboteur (odds are on an activist law clerk who disagrees with the majority’s decision) leaked a draft majority opinion in Dobbs v. Jackson Women’s Health Organization to Politico.
The insurrectionist leaker’s motive is clear—create a chaotic scene designed to intimidate Supreme Court Justices into changing their vote in Dobbs v. Jackson, which could provide the vehicle for the court to upend five decades of deeply flawed case law stemming from Roe’s manufacture, from whole cloth, of an imaginary federal constitutional right to abortion.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)
According to the leaked draft, the Supreme Court will shortly overturn Roe v. Wade, a long-overdue landmark, as the Court missed its opportunity to do so in 1992 in Planned Parenthood v. Casey. The Casey Court opted to partially overturn Roe, rejecting Roe’s strict trimester standard and replacing it with a muddy viability standard, in which the Court reasoned that the state couldn’t place an “undue burden” on a woman’s ability to abort her baby before the baby was viable outside the womb.
Justice Byron White’s famous dissent in Roe could be said of the judicial gymnastics employed by the Court in Casey too—both are an “exercise of raw judicial power.”
Justice Alito’s purported leaked draft opinion agrees, systematically and powerfully dismantling the tottering edifice of a structurally infirm and morally illegitimate opinion that has led to the deaths of millions of pre-born American children throughout the nation.
First, as Justice Alito points out, the right to an abortion is nowhere to be found in the Constitution and “no such right is implicitly protected by any constitutional provision.” Justice Alito explains that pre-1973, “for the first 185 years after the adoption of the Constitution” the people—through state elections—made abortion policy, not the Supreme Court. And with this historical background in mind, it cannot be said that abortion is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”
Second, Roe v. Wade has never been settled law. As the leaked draft points out, Casey rejects Roe’s legal reasoning yet affirms its “central holding.”
Third, the viability/undue burden standard under Casey has never been a workable standard. What makes a burden due versus undue? And furthermore, the moment of viability is not static; babies are now viable earlier during pregnancy thanks to incredible medical advancements that have advanced the ability to save tiny lives.
And finally, stare decisis shouldn’t save Roe and Casey either. As Justice Alito points out, a strict adherence to stare decisis would never have overturned the civil rights monstrosity that was Plessy v. Ferguson.
Abortion advocates are already melting down on social media and outside the high court, decrying the decision a danger to women’s health.
Let’s unpack that lie. The Mississippi law under review restricts the right to an abortion at 15 weeks, with notable exceptions when the life of the mother is in jeopardy and when severe fetal abnormalities exist. No one is forcing a woman to risk her life.
But abortion has never really been about women’s lives so much as about power, and who gets to wield it. Not satisfied to make abortion “safe, legal, and rare,” as some Democrats once claimed, today’s left pushes the limits daily—for abortion on demand, partial-birth and late-term abortions, even decriminalization of “perinatal” child death (within the first 28 days of life, as proposed by a recent California bill).
For years, the abortion lobby has falsely painted a zero-sum game pitting mother against baby, as if women are destined to live out “The Handmaid’s Tale” if they chose life. They elevated the right to an abortion to the level of a religious sacrament so dear to one’s identity and purpose that one could not survive without it, always downplaying the mental and physical scars that abortion leaves on women, not to mention the moral degeneracy of a society that treats life as disposable.
As we see the angry mobs of militant pro-abortionists thronging the barriers erected hastily around the court within hours of the leak’s news, we must remember what is at risk, and who gains, by the shocking betrayal of the court’s inner workings. The abortion industry is highly lucrative and well-entrenched. Regular contributions from Planned Parenthood and its allies ensure that when they call, Democrat politicians listen. Within minutes of the leak, Democrat activists leapt on the news of the draft to pump out talking points about the midterm elections, revive calls for court-packing, and ghoulishly calling for the destruction of the Supreme Court as we know it. The draft opinion’s leaks seems almost timed to affect a wave of primary midterm elections taking place throughout the nation in coming weeks.
So, it is no wonder that an activist leaker did the unthinkable and gave a draft of the Dobbs decision to Politico to publish. That one act of betrayal, which is being hailed, predictably, as “heroic” by abortion partisans, was designed to exert extreme pressure on the justices prepared to vote to end the sham of Roe and Casey and return the abortion debate to the states, where it belongs. So afraid these partisans of the votes of the people, apparently, that they are willing to cripple the hallowed Supreme Court—the very institution that gave them Roe!—to save their sacred cow. The days and weeks ahead may prove the most challenging in the Court’s history since the Civil War era. Will the Court ever be the same? It seems inconceivable.
Harmeet K. Dhillon is the CEO and founder of the Center for American Liberty, the co-chair of the Republican National Lawyers Association, and a trial lawyer at Dhillon Law Group in San Francisco.