This week, an anonymous leaker violated generations of Supreme Court norms by passing on to Politico a draft decision by Justice Samuel Alito in Dobbs v. Mississippi, the case considering overturning Roe v. Wade (1973). That draft decision, reportedly supported by a majority of the Court including Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, junks Roe in its entirety, denying the existence of any Constitutional “right to abortion”; the majority opinion also trashes Roe’s follow-up case, Planned Parenthood v. Casey (1992), which substituted a vague and unworkable “undue burden” test to determine whether or not a law restricting abortion was unconstitutional in place of Roe’s trimester framework. Alito writes, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.”
Alito is, of course, correct. Roe is a legal abomination with no support in the Constitution’s text, our nation’s history, or any legal precedent. The Supreme Court merely usurped power in order to jam down its political opinions on millions of Americans; Roe didn’t end national controversy on abortion, it froze it in place, preventing states from adopting regulations tailored to their voters. Overturning Roe would merely restore the question of abortion to the states; New York would continue to allow abortion until birth, while Texas would ban nearly all abortion.
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