Good afternoon from Capitol Hill.
The unprecedented leak of a draft opinion from the Supreme Court purporting to strike down Roe v Wade and Casey v Planned Parenthood is still rocking the country. Over the weekend, protesters gathered outside the homes of Chief Justice John Roberts and Justice Brett Kavanaugh. Justice Samuel Alito, the author of the leaked draft, has reportedly had to move out of his home due to threats.
A security fence has been erected around the Supreme Court. In Wisconsin, the office a pro-life group was vandalized with a Molotov cocktail and graffiti stating “if abortions aren’t safe, neither are you.” The radical abortion group Ruth Sent Us has vowed to protest Catholic churches and burn the Eucharist.
Chief Justice John Roberts has announced the Marshall of the Supreme Court is conducting an investigation into the identity of the leaker. But the person’s identity is almost irrelevant at this point, as the country has been thrown into turmoil over abortion, and the crediblity of the Supreme Court – one of the last marginally trusted institutions in government – called into question.
But for conservatives, it’s important not to overlook a singular and profound fact: Alito’s draft opinion is the culmination of the principles for which we’ve been fighting for the last 50 years. As a movement, we are on the cusp of potentially overturning the legal architecture of abortion, and sending the decision back to the states.
In other words, we are on the brink of winning, and saving millions of innocent lives in the process.
Michael Brendan Dougherty has more at National Review:
What Alito has penned here is the crowning achievement of the conservative legal movement. It is the statement that hundreds of millions of people, many now dead, have coordinated their political efforts to make possible. First, it makes the argument that Roe itself was wrongly decided, and it relishes quoting liberal and progressive scholars who admit the makey-up nature of the holding in Roe, one that had to be substantially demolished and rebuilt again on the makey-up Casey sequel. Alito’s opinion, with heavy amounts of citation, undermines entirely the historical arguments made by the pro-Roe lawyers in oral arguments, which try to fit abortion into the 14th Amendment’s understanding of due process. “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.”
Alito’s opinion is the vindication of the predictions made by Justice Antonin Scalia’s fiery dissent in the Casey case in 1992, that the Court had fooled itself with its opinion of its own magisterial authority and ability to settle controversies definitively. It is the definitive argument that by arrogating to itself the decision to interrupt the process of legislation in the states, the Supreme Court in 1973 not only overstepped its authority, but set the American state and politics on a course of dysfunction, one that could not be settled by reaffirmation 19 years later in Casey…
These facts, recited in such an opinion, do not of themselves move America’s abortion settlement to the pro-life side. But they are more than an argument that abortion can be regulated or in many cases criminalized by states, as it has been in the past. No, taken together, and stated so plainly, the paragraphs in this opinion are a rhetorical case that states ought to do so. “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.”
That is to say, Alito’s drafted opinion manages to do what so few essays and treatises taking up this subject can do: be truthful and shrewd. The publication of this opinion was a sin. But O felix culpa, this opinion should be anthologized with all the greatest writing on the topic of abortion in the United States. It belongs alongside Richard Selzer’s haunting essays, Joe Sobran’s collection Single Issues. Alito’s opinion joins a cloud of witnesses, convicting our age.
The opinion is, of course, not yet final. And, contra the left’s hysterical talking points drawing a direct line between a potential opinion of this magnitude and the crumbling of precedents around gay marriage, interracial marriage, the availablity of birth control, and so forth, it should be noted that Alito’s draft makes plain the limits of striking down Roe and Casey: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he writes.
Scott Stewart, who represented Mississippi at oral arguments, also made this clear in a back and forth with Justice Sotomayor, as I covered in December.
The left would like to change the terms of this debate away from the reality of what abortion really is to unsupported hand waving about the crumbling of “rights.” Don’t let them. If the final opinion comes even remotely close to what Justice Alito has masterfully articulated in this leaked draft, the judicial fiat which has set legal infanticide on an untouchable legal pedastal will be returned to the democratic square. In other words, the complex questions at the crossroads of advancing science, medical technology, ethics, theology and philosophy will be up to the people who have to live with them.
And Democrats, who have, for 50 years, not had to make their case for dismembering babies in the womb will have to persuade the voters that it’s not really about the taking of an innocent life. It’s about some vague concept of female empowerment (just don’t ask them to define what a female is). They know that, and they’re terrified. Pro-lifers, however, should be celebrating. While at the same time – and this is key – doubling down on our mission to support life at all its stages. It is a profound moment to witness the crumbling of a legal architecture which has, for half a century, ended the lives of millions of precious and unrepeatable souls. I am deeply grateful for the work that’s been done to get us to this point, as I am for the ability to bear witness to it.
The Latest from Around the Conservative Movement
- The Kavanaugh circus continues – but is more dangerous than ever
- Republicans declare Chamber of Commerce irrelevant
- Corporations stay quiet on abortion after Disney’s tangle with DeSantis
- Indiana Republicans pawned social conservatism for economic growth and got neither
One More Thing…
Republican Senators Marsha Blackburn, Mike Lee, and Ted Cruz directly ask Senate Majority Leader Chuck Schumer to condemn threats against the Supreme Court justices.