Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, May 3, 2022

Statement on the leaked Alito draft opinion in Dobbs

On January 22, 1973, I was a high school student working a pro-life information table at the West Virginia University student center when we heard about the Supreme Court’s decision in Roe v. Wade. I recall the horror of learning that the Court had crushed the basic rights of an entire class of precious human beings—our tiny unborn brothers and sisters. I know that the horror I felt that day, and vividly remember to this day, is the horror many people who see the issue differently than I do are feeling today. These include a great many good and honorable people who deeply care about the well-being of women, especially vulnerable women, and believe that their rights are being crushed. Although I disagree with them about the rights and wrongs of abortion, and indeed applaud the reversal of Roe as a victory for justice and constitutional integrity, I feel no temptation to exult.

Roe v. Wade needed to be reversed, as I predicted it would be https://www.firstthings.com/article/2021/10/roe-will-go, not only because it was a grave injustice against the unborn, but also (and in the first place) because it was an unconstitutional decision—an act of “raw judicial power.” The right to abortion it proclaimed lacked any basis in the text, logic, structure, or historical understanding of the Constitution. To say that it was poorly reasoned is an understatement. The truth is that it wasn’t reasoned at all. This left its defenders with an impossible task—defending the literally indefensible.

That does not mean, however, that voting to reverse Roe is an easy thing for justices to do. If, as the draft opinion of Justice Samuel Alito which was leaked yesterday suggests, five or possibly even six justices are voting to reverse Roe, they merit praise for courage and fidelity to principle. The Roe decision lacked intellectual credibility but did not lack influential and powerful supporters. In fact, what sustained Roe for forty-nine years was precisely the prestige, influence, and power of people in academia, journalism, entertainment, key professions and professional associations, the great philanthropies, politics, and the corporate world who were deeply invested in maintaining it, despite its manifest lack of intellectual credibility.

In the beginning, the question of abortion and then the soundness or unsoundness of Roe were not "left" versus "right" issues. There were plenty of prolife liberals or progressives, and lots of prochoice conservatives. Jesse Jackson spoke passionately for the dignity and rights of the child in the womb. As Governor of California, Ronald Reagan supported and signed into law a statute broadly legalizing abortion. In time, though, abortion and support or opposition to Roe began coding as “liberal” and “conservative.”

The conservative legal community developed a critique of Roe that, though commendable and sound in a great many ways, was not fully adequate. That critique, championed by the late Justice Antonin Scalia, supposes that nothing in the Constitution is relevant to the question of abortion prohibition or regulation—hence the matter is left by the Constitution entirely to the judgment of state legislatures. This is incorrect—indeed demonstrably incorrect—and Professor John Finnis of Oxford University and I have demonstrated its incorrectness in among other places, a brief we submitted to the Supreme Court in the Dobbs case. (Published version and supplement here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973183.) Justice Alito’s leaked draft cites that brief and makes excellent, if limited, use of the evidence it provides and arguments it marshals. These establish that the term “person” in the Fourteenth Amendment—an Amendment that, among other things, imposes on States an obligation to afford to persons the equal protection of the laws (including the laws against violent assaults and homicides)—was publicly understood at the time of the framing and ratification of the Amendment as including the child in the womb. The permission by a state of elective abortion, therefore, is a violation of the Constitution and should be declared by the Supreme Court to be so. This is not, however, a claim the state of Mississippi made in defending the constitutionality of its statute and requesting the reversal of Roe, nor is it the outcome the state requested. Understandably, then, the Court did not reach the question. I hope it will do so in later litigation.

As Professor Finnis and I point out in the brief, resolving the matter in the way we argue the Constitution requires does not mean that the Supreme Court should dictate abortion policy tout court. Where pregnancy poses a grave threat to maternal life and health—that is, when we are no longer speaking of elective (or “social indication”) abortions—there are policy and policy-related questions that cannot be resolved by the straightforward application of equal protection principles. These questions are, therefore, properly in the legislative domain and judgments about them should not be imposed by the judiciary.

Two more points.

If, as the leaked draft opinion seems to suggest, the Supreme Court has decided to reverse Roe and return the question of abortion entirely to the legislative domain, then the pro-life movement faces a new set of challenges—challenges even more daunting than overturning Roe. In the face of profound opposition from the wealthiest, most powerful, and most influential forces and institutions in the country, the movement needs to extend the protections of law on terms of fairness and equality to mothers and children alike. Going still further, it needs to work in both the public and private spheres to provide necessary support for mothers and children, never allowing their interests or well-being to be pitted against each other. To its great credit, the pro-life movement has been doing this since before Roe v. Wade—again, in the face of hostility from the most powerful forces. We will need now to do more and better. We can and we will.

What about the leaking of the Alito draft? It is an outrage, of course. Even if the leaker is caught and subjected to appropriate disciplinary proceedings, the damage to the Court will be deep and abiding. Anyone who has worked in the building knows that trust is indispensable to the functioning of the institution. The leak has destroyed trust. Perhaps someday the Court will get it back. But not in my lifetime. Probably not in my students’ lifetimes. For decades—at least—there will be the mere simulacrum, a pretense, of trust; there will not be trust. Trust was shattered in what appears to have been a desperate effort to unleash forces that would bully justices into doing something other than what they regarded as their constitutional duty. In this respect, it is tragically in line with the broader trend in our culture and politics for people to get their way by bullying others. People on the left can think of the examples from the right that stand out in their minds. People on the right can think of the examples from the left that stand out in theirs. It is time—long past time—for decent and honorable people on both sides to say: “Enough! We will not tolerate bullying. We will not tolerate it from our political opponents. But we will be equally and equally vocally intolerant of it when it comes from our political allies.”



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