Jack DeVine / May 13, 2022

The Roe v. Wade Firefight

The Court’s likely reversal of Roe v. Wade is sound, sensible, and long overdue; and no, it will not cause the end of the world as we know it.

This past week, a draft opinion written by Justice Samuel Alito regarding an abortion law case currently before the U.S. Supreme Court (SCOTUS) was leaked to the media. The Alito draft seems to signal that the court’s conservative majority is ready to strike down Roe v. Wade, the 1973 ruling that abortion is a constitutional right.

Suddenly, the future of Roe v. Wade is the number one issue on American minds — and a public brouhaha of the highest order.

It remains to be seen who engineered the public release of a highly confidential court document. But it’s out there, like it or not, and the Democrat political/media spin machine is working overtime with tales of the apocalyptic consequences of the now-anticipated court action. Call it disinformation.

Let me try to present a more balanced assessment:

  • Striking down Roe v. Wade (and with it Casey vs Planned Parenthood, the 1992 case that reaffirmed it) does NOT make abortion illegal. It simply corrects the fiction that abortion is a constitutionally protected right. Doing so will make abortion a legislative matter, not a constitutional one.

Those who worry about the decline of democracy should be cheering, not objecting. If adopted by SCOTUS, the Alito opinion would take this contentious issue away from the nine unelected jurists and place it into the hands of the American people, for determination via their elected officials of abortion’s legality and implementation.

  • Even though the Biden administration so far refuses to condemn either the unauthorized release of the Alito draft opinion or the Left’s encouragement of protests at the justices’ private homes, these are dangerous, grossly improper, and arguably illegal acts.

  • Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett did NOT lie about their intentions regarding Roe v. Wade in their senate confirmation hearings; they declined to conjecture about issues that could come before them in the future. Incidentally, that’s the posture always — and properly — taken by prospective jurists, including the liberal justices on the Court.

Nor did they implicitly pledge not to disturb settled precedents. And as Justice Barrett noted ironically during her confirmation hearing, the barrage of questions directed to her on that subject make clear that it is far from “settled.”

The notion that the U.S. Senate was somehow hoodwinked by three untruthful judicial candidates is ridiculous. In the three confirmation hearings, Gorsuch, Kavanaugh, and Barrett received a grand total of four Democrat votes. Everyone in the chamber knew their views on abortion.

  • We’re told that reversal of a long-held SCOTUS ruling is improper and harmful. Neither is correct. It’s happened numerous of times; and while respect for established decisions is important, so is the willingness and ability for our judiciary to correct its own mistakes — an extraordinary feature of our American system.

For example, much of current day racial justice law and practice is possible today because in 1954 the Supreme Court had the courage to reverse the infamous 1896 decision (Plessy v. Ferguson) that had allowed “separate but equal” (i.e., segregated) public facilities for blacks and whites. Today that would be outrageous, but for 58 years it was established law.

  • And there are repeated warnings, from the president on down, that the Court’s reversal of Roe v. Wade is just the first step, opening the door to subsequent unravelling of established law regarding mixed marriages, contraception, LGBTQ, etc.

Nonsense. The draft opinion makes it abundantly clear that reversal of Roe v. Wade is driven solely by gaping flaws in the previous court’s assessment of constitutionality. There are no links, logical or otherwise, to other issues.

And most important of all is the substance of the matter. The ongoing abortion controversy is not about politics or ideology; it’s about protecting human life. We can debate about when human life begins, but there can be no question that a fully formed unborn baby in a mother’s womb — an infant with beating heart, brain, eyes, ears, fingers, and toes, sensitive to pain and capable of surviving outside the womb — is a human being, deserving of legal protection.

At what point between conception and birth we provide that protection, and how we do so, were matters never fully resolved by Roe v. Wade; and they remain hugely contentious today. It’s time to address them, democratically, via legislation.

Maybe it’s time to look at the Alito draft opinion and its likely acceptance by SCOTUS — just like past Supreme Court decisions that opened the door to racial justice — as a first step in achieving just treatment of not-yet-born, voiceless, human beings.

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