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)
[…]
Yes, “development in the same direction” (Pope Francis)…
The wisdom of the cited 5th-century St. Vincent Lerins is the core, of course, to 19th-century St. John Henry Cardinal Newman (the “father of the Second Vatican Council”), who spells out the message in his “Development of Christian Doctrine.” And which, or course, was not unknown to St. Pope Paul VI when he already (!) clarified moral theology in response to theologians of the day who are still hanging around. (A clarification beautifully fleshed out in Pope St. John Paul II in his “Theology of the Body”.) In “The Development of Christian Doctrine,” Newman appeals, in part, to a biological analogy whereby growth (“development”) is one thing, while corruption is another. Unlike the novelty of any “New Paradigm” misappropriated from the research method of the natural sciences:
“I venture to set down seven notes of varying cogency, independence, and applicability to discriminate healthy developments of an idea from its state of corruption and decay, as follows: “There is no corruption if it retains:
(1) One and the same TYPE [doctrine/natural law v. disconnected pastoral accompaniment?],
(2) The same PRINCIPLES [sound philosophy v. neo-Hegelianism, e.g., any distortion of the four cryptic principles advanced in Evengalium Gaudi],
(3) The same ORGANIZATION [the Barque of Peter v. all religions framed equivalently (?) as ‘the will of God’?];
(4) If its beginnings ANTICIPATE its subsequent phases [Scripture/Catechism/Veritatis Splendor v. Germanic normalization of homosexual activity, etc.?],
(5) Its later phenomena PROTECT and subserve its earlier [Veritatis Splendor/Familiarus Consortio v. the published discussions by the Vatican’s Pontifical Academy of Life, in ‘Theological Ethics of Life: Scripture, Tradition, and Practical Challenges,’ 2021];
(6) If it has a power of assimilation and REVIVAL [New Evangelization v. mutations nested within Amazonia and Germania?], and
(7) A vigorous ACTION from first to last…” [vigorous as in ‘steadfastness’–because (!) fully engaging new challenges and double-speak?].”
Is there any wonder what St. Vincent of Lerins himself would say, specifically, about the “direction” of the unfolding “seamless garment”: the Sexual Revolution, then our contraceptive culture, then abortion and euthanasia, then the LBBTQ uprising and anti-binary gender theory, and then the block-party fantasies of the German “synodal way”?
A plea for enlightenment and godliness. Let the leadership be consumed with desire for virtue and true christianity.
Psalm 119:73 Your hands have made and fashioned me; give me understanding that I may learn your commandments.
2 Timothy 3:16-17 All Scripture is breathed out by God and profitable for teaching, for reproof, for correction, and for training in righteousness, that the man of God may be competent, equipped for every good work.
Hebrews 13:8 Jesus Christ is the same yesterday and today and forever.
Matthew 5:1-48 Seeing the crowds, he went up on the mountain, and when he sat down, his disciples came to him. And he opened his mouth and taught them, saying: “Blessed are the poor in spirit, for theirs is the kingdom of heaven. “Blessed are those who mourn, for they shall be comforted. “Blessed are the meek, for they shall inherit the earth. …
Proverbs 17:15 He who justifies the wicked and he who condemns the righteous are both alike an abomination to the Lord.
Thank you for your zeal the considering the truth.
A celibate clerical caste system who for centuries hailed sexual relations in marriage as unworthy or outright sinful is to be disregarded , as THOMAS AQUINAS stated ‘ priests should be celibate lest they touch the sacred vessels defiled’ HE WAS REFERENCING MARRIED MEN WHO HAD RELATIONS WITH THEIR WIVES BEING PRIESTS, THIS ATTITUDE PREVAILED FOR CENTURIES
Theological discussion if hypothetical [a Catholic tradition] may have value. Or it may not, Pope Francis acknowledging simply hypothetical proposals, then adding that the participants were seeking a Church advancement rather than a Lerinian response. That from a pontiff is a consideration of the hypothesis.
If there’s a known percentage of Catholics who abide by Humane Vitae on contraception it is a minority likely somewhere below 10% [some surveys 2%]. Few priests address contraception from the pulpit, as if Humane Vitae, the Catechism 2370 don’t exist. Unfortunately, Paul VI spoke correctly, that “contraception will lead to infidelity, the lowering of morality, a loss of respect for women, and the belief that humans have unlimited dominion over the body”. Divorce among Catholics is now on par with non Catholics.
Discussion on finding general legitimacy for contraception doesn’t make sense. Unless, legitimization would remove the penalty for so many on what 2370 teaches is intrinsically evil. What is reasonable considering the dramatic coincidence of contraceptive use and the breakdown of morality is an increased effort to address the issue. Furthermore, if there’s a marker for the wide loss of faith in the Eucharistic real presence, the sacrament of life, it’s the deprecation of the value of life from its transmission to birth.
A change on what the Church has declared an intrinsic evil will precipitate reconsideration of all intrinsically evil acts. Is that the hidden stratagem, a Synod on Synodality agenda?.
It is clear that our Pope, who has promised he would not change doctrine, (he is a child of the Church), will continue to treat anything that is intrinsically evil as evil. In this interview, which covered many subjects besides contraceptives, he said: But know that dogma, morality, is always in a path of development, but development in the same direction.” In the same direction is a critical part of the sentence which must not be trivialized or ignored.
Every serious Catholic knows what is going on here without the minute parsing of the bafflegab persiflage because we have already seen it so many times already in the past 9 years.
Saint Vincent of Lerins – Pray for us.
Short answer to the title’s question – not if you want to get rid of abortion.
Did I say “yes”?
Should have been “no if you want to get rid of abortion”.