The news site Politico has released a draft opinion written by Associate Justice Samuel Alito purporting to uphold the state of Mississippi’s ban on abortion after 15 weeks and overturning Roe v Wade and its progeny which created a federal constitutional right to abortion. According to Politico, this opinion represents the majority view of Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Apparently, the view of Chief Justice John Roberts is not known. The courts three liberals – Sotomayor, Kagan and Breyer – obviously are in favor of maintaining Roe.
Writing for what is reported to be a majority in the case is Dobbs v Jackson Womens’ Health Organization, Alito said: “We hold that Roe and Casey must be overruled.” There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted. It is also “fundamentally different” from “the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” as it destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.” Stare decisis “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 it has had “damaging consequences.” “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.”
Readers are cautioned to understand that the opinion released by Politico, while confirmed by Chief Justice Roberts as an authentic draft opinion, is almost certainly an early draft. The opinion could change as justices weigh in with their own views, and it is also possible that a justice could change his or her mind. Changing the opinion of a justice is apparently what is intended by the person who leaked the opinion.
The leaking of this opinion is a crime, according to noted criminal justice authority Andy McCarthy, a former Department of Justice attorney and lead legal analyst on Fox News Channel. This is the first time in the history of the US Supreme Court that a draft opinion was leaked to the media before it was finalized. Chief Justice Roberts said in a statement that an investigation into the identity of the leaker will begin immediately.
It should not be difficult to determine who leaked the document. Only 45 people have access to draft opinions of the Court. Most of the speculation is that one of the 36 law clerks (four per justice) employed by the Court is the leaker. Clerks who work for one of the three liberal justices will be under particular suspicion.
But it is also possible that one of the justices himself or herself leaked the opinion. This must also be examined. If it was a justice who leaked the opinion, that justice should be impeached by Congress.
Regardless of who leaked the opinion, why it was leaked is a simple calculus. Firstly, the leaker hopes to rally the Democrat mob to pressure a justice to change his or her vote before the case is officially decided. And the mob is reacting exactly as predicted (and as this author outlined would likely happen in a prior ifamnews.com article).
Secondarily, even if the leak of the opinion does not result in one of the justices switching sides, the leaker wants to enable Democrats to use this case as their rallying point for the 2022 midterm elections. The Democrat left hopes that having mobs in the streets protesting over abortion will be enough to distract voters from the disastrous presidency of Joe Biden, who has established himself to be incompetent on nearly every level. Leading Democrats are hoping that the elections this year will be about abortion and not Biden.
It’s a desperate hope and its pursuit will only serve to further divide the nation and undermine the Democrat agenda. A political party that actively encourages mob rule is not charting a course that inspires people to continue to grant them authority.
This is a developing story. Stay tuned for updates.