From the day it was issued, the Supreme Court’s decision in Roe v. Wade stood as a monument to contempt for the rule of law. It was based on a tendentious and false account of history, buoyed by a legal theory of “due process” that was disconnected from the history and original meaning of the Constitution, and tainted by internal politicking and manipulation behind the scenes.
Nobody really respects Roe as a sample of constitutional jurisprudence or legal reasoning. Some people pretend to, of course, because they favor the result. As a noted legal scholar once said, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
Ever since that day, the courts have struggled to deal with the jurisprudential mess that Roe created. Decision after decision tried vainly to make sense of it, and all the while it was clear that every ruling was primarily results-driven. Justice Scalia, who viewed Roe with the contempt it deserved, once called the Court’s so-called jurisprudence the “ad hoc nullification machine” that always found some way to invalidate state laws regulating abortion.
In 1992, the Court handed down its decision in Planned Parenthood v. Casey. The controlling opinion purported to uphold the “central holding” of Roe. Nobody was fooled by that, since they transparently and completely re-wrote Roe. A new standard was invented to evaluate the constitutionality of abortion regulations that essentially amounted to complete subjectivity—“I know it when I see it.” The Court continued to dig itself into a hole of jurisprudential nonsense and it couldn’t bring itself to find a way out.
An unprecedented Supreme Court leak
Now we have the latest display of contempt for the rule of law. The case of Dobbs v. Jackson Women’s Health Organization was argued before the Court in December. The ordinary process of the Court is for them to take a vote among themselves, then draft and circulate proposed opinions to generate the final results. Everyone expected a decision at the end of the Court’s term in late June.
This process, which is essentially the same as every court in America follows, is always conducted confidentially. The sanctity of a court’s deliberations is an inherent part of our rule of law. It ensures that the judge is able to rule fairly, based on the law and the facts of the case. Any interference from outside would be an outrage.
Just consider the similar process of jury deliberations. There’s a reason that jurors are sequestered in private, and great care is taken to ensure that there are no outside influences or leaks. Attempts to sway or intimidate a jury are prosecuted as serious crimes.
But for abortion supporters, all the rules are thrown out the window and only the result matters. A draft majority opinion in the Dobbs case has been leaked to the press. Nobody knows who did it or why, and speculation runs rampant. But it clearly is an attempt to excite advocates to exert outside political influence on the Court, in a desperate attempt to preserve the “right” to abortion. This is an egregious offense against the rule of law and shows utter contempt for the Constitution and the Court.
I refuse to read the document itself, because I do not want to have anything to do with stolen property. An early draft opinion may have no resemblance to the final version, and early vote tallies may change as the day of decision approaches. Nothing is final until it is final.
From what I have read about the draft document in news reports, it corrects most of the mistakes that the Court made in Roe and Casey. There is no support in history or the Constitution for a right to kill unborn children. While other personal freedoms relating to marriage and sexuality may have a basis in the Constitution, abortion is sui generis (i.e. in a class of itself) because it undeniably involves the destruction of a human being. Regulating and prohibiting homicide has always been the province of the states, and that authority should be returned to them. Their decisions should be respected by the courts and not easily overturned.
That kind of opinion would go a long way toward restoring the rule of law. Of course, a truly correct decision would recognize that an unborn child is a “person” under the Constitution and must be given equal protection by the laws. But that would be a bridge too far for the Court at this time. But in the meantime, it looks as if states may be given much greater latitude in protecting unborn human life.
From the beginning, the politics and legal theory of abortion have embodied contempt for human life and for the law. The leaking of this document continues that, and will undoubtedly lead to further erosion of respect for the sanctity of the legal process. Unfortunately, it’s just yet another example of how abortion poisons everything it touches.