Capitol police placed fencing in front of the U.S. Supreme Court on Dec. 1, 2021, during oral arguments in Dobbs v. Jackson Women’s Health Organization, in an attempt to separate rallies by abortion supports and pro-lifers. / Katie Yoder/CNA
Denver Newsroom, May 3, 2022 / 18:00 pm (CNA).
The Supreme Court’s previous abortion rulings were “egregiously wrong from the start” and on a “collision course with the Constitution.” These are among the colorful phrases of a 98-page preliminary draft of a U.S. Supreme Court decision that could return abortion law to the U.S. states and their voters.
The draft in Dobbs v. Jackson Women’s Health Organization was leaked on Monday evening. The Supreme Court stressed that the document “does not represent a decision by the Court or the final position of any member on the issues in the case.” But the draft shows some insight into the thought of author Justice Samuel Alito on how the court might overturn the pro-abortion decisions Roe v. Wade and Planned Parenthood v. Casey.
Here are some choice thoughts, phrases, and arguments from Alito’s draft:
Mandatory legal abortion is overruled, the debate goes back to the states.
“Abortion presents a profound moral question,” the draft concludes. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
“We hold that Roe and Casey must be overruled,” Alito said in his introduction. “The Constitution makes no reference to abortion and no such right is explicitly 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.”
It’s about human life: Abortion ‘fundamentally different’ than related court decisions
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being’.” (p. 5)
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.” (p. 32)
‘Egregiously wrong from the start’
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.” (p. 6)
Women’s voices on abortion must be heard through the legislature and the ballot box, not the courts
“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” (p. 61)
The states have ‘legitimate interests’ to regulate abortion.
“…procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our nation’s history.
“It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged ‘under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies’.
“…These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.” (p. 65-66)
Roe v. Wade was ‘on a collision course with the Constitution’ from day one.
“…Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people.
“Rather, wielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.
“Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the state’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” (p. 40)
Abortion precedents relied on bad history and bad reasoning
“The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.” (p. 42)
“What Roe did not provide was any cogent justification for the lines it drew.” (p. 46)
“The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.
“Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” (p. 9)
“Roe either ignored or misstated this history, and Casey declined to reconsider Roe faulty historical analysis. It is therefore important to set the record straight.” (p. 16)
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right…
“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.” (p. 15)
“By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four states and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother’.
“This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother…
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” (p. 24)
The Supreme Court can’t settle the abortion debate
“This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power’.” (p. 64)
[…]
““As a founding principle of our country, we have always welcomed immigrant and refugee populations, and through the social services and good works of the Church, we have accompanied our brothers and sisters in integrating to daily American life,” Bishop Mario Dorsonville, auxiliary bishop of Washington and chair of the US bishops’ Comittee on Migration, said Jan. 2.”
Someone needs to take a remedial US history class.
SOL,
Which part of US history did you think they need a remedial class on?
Who are most Americans originally if not immigrants?
I’d agree it’s not correct to say that we have always, at all times welcomed immigrants and refugees but we certainly have done that selectively. And Catholics have for the greater part been among the groups of immigrants not warmly welcomed.
We need immigration to counteract the current birth dearth but we don’t have to have open borders or risk our national security. There should be a reasonable and humane approach to immigration.
Has it occurred to you that mass immigration is a cause of the drop in birthrates? By driving up the cost of living (housing, heath care, taxes, etc.), while depressing wages, it makes family formation so much more difficult.
Tony,
Birthrates are plummeting globally with or without immigration. Even government incentives to have a replacement level birthrate have failed.
Hungary is offering tax incentives for families and hopefully they’ll have some success.
Mrscracker,
The founding American people were not immigrants but colonists/settlers. They didn’t enter into a pre-existing polity and receive citizenship or some other form of membership from another people. The whole “America is a land of immigrants” myth was created by leftist subversives even if used by 20th ce nationalists for their own purposes after the fact, more than 3 centuries after the first British colonists started settling this country. Many of the founding fathers after the revolution even explicitly wrote on the question of whether anyone non-British should be allowed to immigrate to the US.
This original Anglo-American (and Protestant Christian) heritage and identity is what the left is trying to erase and unfortunately too many Catholic bishops are assisting in this, even if the bishops seek to replace it with some vague “Catholic” identity.
This system is currently in a stage of collapse, and continued immigration will further destabilization and increase the likelihood of wide-scale violence, regardless of how necessary believers in infinite economic growth say immigrants are for that.
SOL,
Good morning!
My daddy’s side of the family has been here for 400 years. I went to the UK a few years ago and visited the parish church of a 17th century colonial ancestor. In his memorial he’s referred to as “Henry the Immigrant” because he migrated to the American Colonies.
🙂
You know, the longer your ancestors have lived in North America the more likely you are to find non Anglo Saxon ancestry or ancestors who came as convicts. The American colonies were a dumping ground for thousands of British convicts until the Revolutionary War. After that, the British had to turn to Australia and Tasmania to dump their unwanted.
Beyond chattel slavery, folks of African ancestry have been here for 400 plus years. Many were free people of color and many intermarried with white colonists.
And of course, our American Indians have their own perspectives on immigration.
History is complicated and the more you look at it, the more humble you feel. Most of us have very modest beginnings and sometimes, we find very surprising narratives along the way.
Your argument seems to be that, since we are all the descendants of immigrants (in the broadest sense of the word), there is no justification for this nation (or really, any nation) to have a restrictive immigration policy. Apparently, this Ellis Island sentimentalism must override all other political, social, cultural and economic considerations. Does a country have a right to try to maintain its ethnic and cultural balance by limiting who is allowed in?
More mindless, liberal rubbish from bishops who seem utterly incapable of, not to mention unwilling to, speak in anything other than left wing cliches. Will they ever declare solidarity with the American people?
Looked up the bishop in question.
Wikipedia: Mario Eduardo Dorsonville-Rodríguez (born October 31, 1960) is a Colombian-born bishop of the Catholic Church in the United States.
Like Jose Gomez, another immigrant who is presumptuous enough to lecture Americans about American history and identity.
Thanks for the information. I suppose the good bishop has admonished the elites in Colombia on the need to clean up the corruption and to improve the nation’s economy that has apparently created such intolerable conditions.
Wish the bishops (and the nuns!!) would show a little solidarity with the dyslexic/dyscalculaic/etc community.
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Just because dyslexics frequently have high intelligence does not mean they all go to MIT and walk out with $75,000 starting income.
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Many suffer socially as well as educationally and the job situation upon adulthood can look bleak. As many prisoners are dyslexic, I think it is a good bet if it was caught early in school, we’d have fewer children in trouble and fewer adults in prison.
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I mean no ill will toward those looking for a better life, but we have plenty of hurting children/adults who were born here. Don’t they deserve the same concern?
Tony,
North Americans, with the exception of those descended from our Indian tribes, are all the product of quite diverse immigrant populations from the past 400-500 years. I dislike the term “diverse ” because it’s become a cliche, but it really does describe our immigrant history.
I don’t think race or ethnicity should even enter into a Catholic conversation regarding what to conserve in America. Color and ethnicity simply don’t signify but culture does.
A Judeo Christian culture is what conservative Christians and others should be concerned about preserving. Not Anglo Saxonism. Culture, not color is what’s critical.
And yes, I strongly believe that sovereign nations have a right to secure their borders and enforce immigration laws. And preserve their unique cultures. But you have to have enough population to ensure a functioning society to pass that culture down to. Societies that are ageing and not reproducing themselves won’t be capable of that and will eventually be replaced.
Nature abhors a vacuum.
Immigrants – they are ambassadors of the Good News.
All of them? How so? In what way?