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)
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Another door-stop USCCB document on “Eucharistic coherence” with page after page of pious blather that a 2nd grader preparing for First Communion could summarize in a simple declarative sentence completely misses the point. Biden is a heretic and is already excommunicated latae sententiae. The bishops need to declare Biden’s excommunication formally and publicly and then proceed down the line from there. U.S. Catholics have had enough. Actions, not words, are what is demanded.
Problem is this action would not only apply to Biden. It would apply to millions of Catholics, who might stop coming to church and no longer financially supporting the church. Then the church could face a dilemma. How important is money?
Also this could lead to schism. Do we really want another of these? Maybe some do.
Valid points, but maybe a spiritual housecleaning is necessary at this point. Better to have a smaller, faithful Church than a morally and spiritually corrupted larger body.
At least those “millions of Catholics” will have ceased committing sacrilege by receiving Holy Communion in a state of mortal sin.
John 6:66
Great Expectations. Biden’s expectation [a shameless excerpt from a previous comment] has an imperious tone, solemnly urging the Church to desist from its faithful practice, refusing what’s owed him over a mere trifle, a predisposed approval of the murder of approx 70 million innocents since 1973. The president lives in a world bereft of “rules”, except his own, with license presumptuously due to separation of Church and State. He recently shouted, arms flailing, that he’s made far greater radical change to our Nation than any predecessor. Destructive changes to timeless moral doctrine on life, family, and sexuality. An infant in the womb is in greater danger during his administration than at any time in history. What’s at stake for the Church isn’t political expediency. Nor maintaining order and cohesion. Neither is separation of Church and State at issue. Rather it’s the foundation of a just society in which religious freedom and the right to uphold its values. Values that are the source of that foundation for justice.
“An infant in the womb is in greater danger during his administration than at any time in history.”
Well said.
I think we can have a pretty good idea of the bishops who supported going forward on the document, if we’ve been following this story. Several bishops have come forward, besides Cordileone and others who have been forthright thus far.
“Hope springs eternal . . .”
So are we going to deny communion to those Catholic politicians advocating the death penalty?
While on this path what about those who campaigned for sending US troops to Iraq?
Oh, please. Support for abortion, “gay marriage”, and trans-sexualism is different, in kind and degree, from prudential judgments re: capital punishment and national defense.
Oh, please, the invasion of Iraq had nothing to do with national defence. It was an act of un godly evil, in every respect it was a murderous pursuit! And one can argue that prudential judgements as applied to capitol punishment can also apply to the issue of Abortion. It is my personal position that I am against abortion, full stop. However to what degree or extent, in a democratic republic where there is the separation of church and state, can I insist that an other, who does not share my faith in Jesus, be beholden to a law that may be against the wishes of a voting majority who are non christian?
The answer you seek is no, because as the court of the Pontiff Francis has reluctantly implied by its “eloquent ambiguity,” (to quote one apologist) the death penalty cannot be declared immoral.
This is as compared to abortion, fornication, sodomy, false witness and idolatry, which, among other things, remain mortal sins.
I have no academic qualifications in Ethics unlike Mr Weigel but a quick look at the Wikipedia page on the subject states:
[ In ethics, a “prudential judgment” is one where the circumstances must be weighed to determine the correct action. Generally, it applies to situations where two people could weigh the circumstances differently and ethically come to different conclusions.
For instance, in the theory of just war, the government of a nation must weigh whether the harms they suffer are more than the harms that would be produced by their going to war against another nation that is harming them; the decision whether to go to war is therefore a prudential judgment.]
Mr Weigel, an author and academically qualified ethicist who has written extensively on the subject of Just War Theory was a signatory to the Project For a New American Centurary’s Statement of Principals, accompanied by the political elite of the Bush administration. His support for invasion of Iraq is on record, in effect a Catholic blessing of this act of war: https://www.americamagazine.org/issue/428/article/just-war-case-war
Why is Mr Weigle, a celebrated contributor of articles to CWR not the subject of serious discourse with respect to the sanctity of life?
One could mount an argument that he should be denied communion!
An ordinary and commonplace and “private thing,” says the hollow-suited and sleepwalking occupier of the White House…
When Hannah Arendt interviewed Adolf Eichmann, the captured overseer of Hitler’s “final solution” to the Jews, she found him to be “quite ordinary, commonplace, and something neither demonic nor monstrous” (Eichman in Jerusalem: A Report on the Banality of Evil, 1964).
Biden has frequently said that he personally opposes abortion but that he “won’t impose his beliefs on anyone else”, or some such blather.
Mr. President – we’re not asking you to do that, we are merely asking you to DEFEND what you say your beliefs are, and there is NO sign that you have any intention to do so.