The leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe was a shameful attempt to poison the well so that it would never see the light of day, at least not as the court’s majority opinion.
The seven-plus weeks that followed brought not only brazen intimidation tactics, but also the attempted murder of a justice and violence that extended to crisis pregnancy centers and churches.
Those threats and violence failed. The court’s majority held, and those justices should be recognized for their courage to withstand the intense pressure targeting them on so many levels. Alito’s opinion does not significantly differ from the earlier draft other than to address other justices’ concurring and dissenting opinions.
The majority does not play coy about overruling erroneous precedents, as the court has sometimes been known to do. It states unequivocally that Roe and Casey v. Planned Parenthood, la 1992 decision that reaffirmed the abortion right established in 1973 by Roe, “must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Alito’s opinion goes so far as to call Roe “egregiously wrong from the start,” con “exceptionally weak” reasoning and “damaging consequences.”
Dobbs involves a challenge to Mississippi’s statute prohibiting abortions a 15 semanas, with exceptions for medical emergencies and severe fetal abnormality. Mississippi’s 15-week limit is far earlier than the standard established in Casey, which limited the restriction of abortion to after “viability.” While the viability line has shifted with advances in technology, it is still nowhere near 15 semanas.
The court did not address when states should start protecting prenatal life, leaving this to legislatures to determine, but it acknowledged what both Roe and the decisions that followed it whitewashed: “Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”