While the final version may yet change, Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Center is an amazing takedown of Roe v. Wade.
For starters, Alito notes that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” He also explains that Roe v. Wade was “egregiously wrong from the start.”
“Its reasoning was exceptionally weak, and the decision has had damaging consequences,” he continues. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Liberals were immediately outraged, but Alito not only makes a clear, logical case for overturning Roe, but he also did so with the help of Ruth Bader Ginsburg.
“In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process,” Alito explains. “It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … [I]t represented the ‘exercise of raw judicial power’… and it sparked a national controversy that has embittered our political culture for a half-century.”
This sounded a lot like something that Justice Ginsburg said in 1992, in a lecture published in the New York University Law Review, in which Ginsburg lamented that Roe v. Wade “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”
And Alito quoted that very passage in his opinion.
Ginsburg also argued that the Court went too far by not simply striking down the Texas law challenged in Roe v. Wade.
“A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy,” Ginsburg said.
Ginsburg has been quoted in the past about her reservations over the legal basis upon which Roe was decided. Ginsburg argued in 2013 that Roe “stopped the momentum that was on the side of change” in favor of abortion rights and instead inspired a state-by-state mission to restrict abortion rights.
Alito similarly noted that Roe v. Wade didn’t end the abortion debate in the United States.
“Neither decision has ended debate of the issue of a constitutional right to obtain an abortion,” Alito’s opinion reads. “Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives.”
He added, “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.”
I’m sure it burns up the left knowing that “The Notorious RBG,” a stalwart defender of abortion rights, was quoted in the draft opinion that effectively ends Roe v. Wade.
Conservatives have been arguing for years that Roe v. Wade was wrongly decided. They were never going to believe it from them, but perhaps they should have listened when RBG was saying the same thing.