“We hold that Roe and Casey must be overruled.” These momentous words, written by Supreme Court Justice Samuel Alito, recently sent shock waves across the American political landscape. Alito’s majority draft opinion was published by the left wing news outlet Politico. According to Politico’s source, Justice Alito’s position had garnered the support of four other justices including Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Meanwhile, the three Democratic-appointed justices – Stephen Breyer, Elena Kagan, and Sonia Sotomayor – dissented from the majority’s opinion. It was not known how Chief Justice John Roberts would vote. The draft opinion strongly suggests that the Supreme Court is poised to strike down the landmark case of Roe v. Wade, which established a constitutional right to abortion.
Justice Alito’s extraordinary opinion in the case of Dobbs v. Jackson Women’s Health Organization is not quite the end of the matter. Rather, Alito’s words were apart of a draft opinion; that is, an initial opinion circulated among the Justices of the Court as they debate the case amongst themselves. It is not a final decision. It is well worth noting that such a draft opinion has never seen the light of day. As Politico itself reports, “No draft decision in the modern history of the court has been disclosed publicly while a case is pending.”
When a case is argued before the Supreme Court, the justices consider the merits and make their initial judgments. The majority of the justices in favor of a certain outcome spell out their reasoning in a draft opinion. Meanwhile, any justices who disagree with the majority position likewise craft their own written response. In this way, the members of the court are able to interface with each other as they move towards a final outcome. During this judicial back-and-forth, arguments are more clearly articulated and refined. In some cases, Justices make such compelling points that they are able win over fellow members of the court to their way of thinking. Only after this process of dialogue and debate does the court issue a final ruling which carries the full force of the law.
A strong, independent judiciary is essential for the flourishing of any nation. Citizens must have confidence that they will receive a fair hearing when they bring a legal dispute before the courts. Cases must be weighed strictly on the merits; the outcome must hinge solely upon the law itself. There are potentially disastrous consequences if the court’s judgment is altered by outside pressure and intimidation. God have mercy on those parts of the world where the legal system has been corrupted by bribery, extortion or threats. When disputes cannot be peacefully settled according to the law, society inevitably descends into violence and anarchy. When there are no clear and consistent governing rules, commerce suffers. Such societies are plunged into poverty and misery.
Understanding these realities requires that we place the highest value upon the integrity of our courts in general and specifically upon the Supreme Court which sits at the pinnacle of our judicial system. This is precisely why the internal processes of the court are so closely guarded. The Supreme Court rightfully does all that it can to ensure that citizens maintain a high degree of confidence that disputes before the court are decided fairly and impartially according to the highest law of the land – the United States Constitution.
This is also why the recent leak of Justice Alito’s draft opinion is so unprecedented and damaging. The source of the leak and their motive is presently unknown. It seems very likely that the draft opinion was leaked to a hard left news organization by a supporter of abortion, hoping that the ensuing public outcry would pressure the court into reversing its position. Although much less likely, it’s conceivable that a pro-life individual leaked the draft, hoping to cement the decision by preventing any of the majority justices from changing their mind. As the Wall Street Journal editorial board writes, “A Justice who switched his or her vote now would be open to ridicule for wilting under pressure.” Regardless of who leaked the draft, we should all be eager to make sure this doesn’t happen again. The leak is a deplorable act of sabotage which threatens to destroy the credibility of our nation’s highest judicial body.
Sadly, many in the Democratic Party have already declared war upon the Supreme Court. One pro-abortion organization calling itself Ruth Sent Us (named after the late Justice Ruth Bader Ginsberg) has encouraged people to harass conservative justices. Disturbingly, the group published the locations of these Justices’ homes on their website. Many pro-abortion protesters took their cue and dutifully gathered outside the private residences of Justice Alito and others. Even if such protests remain peaceful and don’t descend into mob action, they are strictly prohibited by Federal law. All Americans have the right to passionately protest in appropriate public venues. But hostile demonstrations at the Justice’s homes are a blatant attempt to threaten and intimidate the court. Thankfully, Republican governors Larry Hogan of Maryland and Glenn Younkin of Virginia – states where the Justices live – have called on Attorney General Merrick Garland to put an end to these despicable tactics.
Don’t hold your breath waiting for Garland to spring into action. The Biden Administration has been quite content to tolerate or even encourage the intimidation of the Court. White House Press Secretary Jen Psaki refused to criticize the draft leak itself, nor could she muster any condemnation or even the slightest concern regarding the tactics of the pro-abortion protesters. Meanwhile, virtually the entire Democratic Party has loudly expressed their renewed willingness to subvert the norms of our government by packing the Supreme Court and ending the Senate filibuster.
Perhaps the strangest accusation hurled about by the political left is that the Court’s presumptive decision would threaten our democracy. In reality, by striking down Roe v. Wade, the Court has returned the issue of abortion to the American people. The legal status of abortion will now go before the voters of each state. Deep blue states will no doubt move quickly to ratify their embrace of abortion at any stage of pregnancy for any reason. However, red states will now be allowed to enact legal protections for unborn babies. At issue in the Dobbs v. Jackson case was a law passed by the state of Mississippi which would prohibit abortion following the 15th week of pregnancy except in cases of medical emergency or severe fetal abnormality. Other states might choose to require waiting periods, counseling or an ultrasound prior to an abortion. Either way, the issue of abortion will fall into the hands of the American people themselves, expressing their will through their elected representatives.
The overturning of Roe v. Wade would represent a tremendous victory for the pro-life movement. We should be thankful for all those who have had the courage to fight for life in the political and legal realm. Pro-life advocates who enter into the public arena often endure bitter personal attacks from the dark legions of the pro-abortion lobby. If indeed Roe is struck down, we shall owe a huge debt of gratitude to Justice Samuel Alito and his colleagues on the Supreme Court. I pray that these Justices will have the integrity to follow the law and end the tragic 50 year regime of Roe which has resulted in the death of 63 million babies since 1973. And yes, we should also be thankful for former President Donald Trump and those of his administration who steadfastly committed themselves to appointing Justices who would not tolerate the absurd legal fiction that somehow the US Constitution grants the right to abort a child.
The reversal of Roe would spare the lives of thousands of unborn babies and send a resounding message to our society that life is worth protecting. Yet even as we anticipate a great victory, the larger battle will go on. There are determined forces in our society which will continue to advocate for the destruction of the unborn. This is obviously true in parts of the country controlled by the Democratic Party. According to the pro-abortion Guttmacher Institute, there were 862,300 abortions in the US in 2017. This figure has blessedly fallen since 1990, when the number of abortions peaked at 1,608,600. The decreasing frequency of abortion has multiple causes including greater access to contraception. However, the power of Christian witness should not be discounted.
Christian witness has taken many different forms. We’ve already noted those who strive for the cause of life in the political and legal realm. Women choosing to undergo elective abortion are much more likely to be poor and unmarried. Therefore, Christians can further prevent abortions by supporting political policies which promote marriage and healthy economic growth. By such means, we can create the conditions whereby people freely choose life. Many Christians engage on a more personal level, serving in one of the thousands of pro-life crisis pregnancy centers which span the nation. These centers actively demonstrate God’s love through care and practical support of young women facing unplanned pregnancies. And every Christian has the power and the responsibility to engage our fellow citizens as God’s ambassadors.
So we shall all await the final decision of the Supreme Court, hoping that the Court will end Roe once and for all. But in the meantime, the church still has a vital task. We must continue to advocate for the lives of unborn children, speaking for those who have no one else to speak on their behalf.
“The overturning of Roe v. Wade would represent a tremendous victory for the pro-life movement.” Indeed.
But an even bigger victory for millions unborn children who may somehow avoid the cruel instruments of torture and death at the hands of unethical medical malpractitioners.