Thirty Best Quotes From Samuel Alito’s Draft Decision Upending Roe v. Wade

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On Monday night, May 2, Politico published a draft opinion of the United States Supreme Court that would overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide.

According to Politico, the five conservatives on the court have voted in favor of the decision, which was written by Justice Samuel Alito. The three liberals are against, while John Roberts, the chief justice, apparently hasn’t made up his mind.

The draft decision, which was leaked to Politico, is not an official decision of the court, which wasn’t planning to release a decision until late June. But if this decision or one like it is officially approved by the court, it would throw out not only Roe v. Wade, but also Planned Parenthood v. Casey, the 1992 decision that claimed abortion is a fundamental liberty protected by the federal constitution.

Instead, the new decision in Dobbs v. Jackson Women’s Health Organization would return the regulation of abortion to state governments, where it was before January 22, 1973.

The draft decision is a tour de force of facts and legal reasoning. It should consign Roe and its progeny to the ash heap of history.

In light of the unprecedented leaking of the draft decision — likely by a pro-abortion clerk or staff member seeking to try to derail it — the court should move quickly to issue this decision.

Below are what we consider the 30 best excerpts from Justice Alito’s decision.


1.  Roe Was Wrong, Stupid, and Arrogant

“For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade … Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (e.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.”


2.  Roe Was Illogical

“Although the Court acknowledged that States had a legitimate interest in protecting ‘potential life,’ it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe‘s reasoning.”


3.  Roe Was Tyrannical

“It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the exercise of ‘raw judicial power’ … and it sparked a national controversy that has embittered our political culture for a half-century.”


4.  Planned Parenthood v. Casey Was Nonsensical

“Casey threw out Roe‘s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a ‘due’ and an ‘undue’ burden.”


5.  Roe v. Constitution

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision …”


6.  Multiple Wrongs Don’t Make A Right

Stare decisis, the doctrine on which Casey‘s controlling opinion was based, does not compel unending adherence to Roe‘s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”


7.  In A Representative Democracy, A Handful Of Politically Connected Lawyers With Black Robes Don’t Make All The Rules

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. … That is what the Constitution and the rule of law demand.”


8.  When Making Stuff Up, Don’t Get Too Caught Up In Details

“The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”


9.  A Government of Laws, Not Men

“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution.”


10.  No Fundamental Right To Kill

“… guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’ When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”


11.  It Takes A Modernist

“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. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.”


12.  Abortion Was Always Considered Wrong

“In sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.”


13.  Constitutional Right To Abortion Is Made Up

“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.”


14.  What Part of ‘Democracy’ Do You Not Understand?

“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”


15.  What’s New Is Claiming It’s O.K.

“Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.”


16.  Roe Was Self-Refuting

Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe‘s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”


17.  Roe Wasn’t Just Unconstitutional, It Was Anti-Constitutional

Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but ‘raw judicial power,’ … the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”


18.  Heave Ho

“Together, Roe and Casey represent an error that cannot be allowed to stand.”


19.  Roe Wasn’t Just Wrong, It Was Dumb

Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the ‘meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any party and has never been plausibly explained.”


20.  When Judges Became Legislators

“The weaknesses in Roe‘s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.”


21.  Is It Too Late To Impeach Harry Blackmun?

“Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested — contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority — that the common law had probably never really treated post-quickening abortion as a crime.”


22.  Want To Be A Judge Or A Legislator?

“The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.”


23.  Viability Is Nutty As A Legal Concept

“The viability line, which Casey termed Roe‘s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.


24.  Casey Struck Out

“Casey, in short, either refused to reaffirm or rejected important aspects of Roe analysis, failed to remedy glaring deficiencies in Roe‘s reasoning, endorsed what it termed Roe‘s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe‘s status as precedent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent.”


25.  Try Democracy

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”


26.  No Red Herrings

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”


27.  Stare Decisis Ain’t Everything

“The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command.”


28.  Stupid Is As Stupid Does

“This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”


29.  Yes, States Can Regulate Or Prohibit Abortion

“A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’ … These legitimate interests include respect for and preservation of prenatal life at all stages of development …; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability …”


30.  … Where It Belongs

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”


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