The Potential Reversal of Roe v. Wade Precedent by US Supreme Court

CommentaryThe story about the leaking of a draft opinion, which purports to reverse the Roe v. Wade decision, is met with great disbelief in the United States. Justice Samuel Alito writes in his decision that “Roe was egregiously wrong from the start,” and “We hold that Roe and Casey must be overruled.” In the document, labelled as the “Opinion of the Court,” he asserted, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The judgment in Roe v. Wade, rendered by the Supreme Court in 1973, and its accompanying case of Planned Parenthood v. Casey, allowed the practice of abortion on demand, until about the time the foetus would be able to live outside the womb. Justice Harry Blackmun, writing for the majority in Roe v. Wade, discovered a constitutional right to privacy in the due process clause of the 14th Amendment to the U.S. Constitution, which relevantly states that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” He asserted that this right of privacy, found in the 14th Amendment’s “concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thus, this judgment has been part of American constitutional law for almost 50 years: a constitutional precedent, which is much maligned by pro-life supporters, and much treasured by pro-choice proponents. The leaking of the draft opinion, reversing this precedent, raises the question how and why a Supreme Court insider, possibly a liberal law clerk, could leak such a sensitive draft. The leak is unprecedented in the history of the Supreme Court. Chief Justice John Roberts, expectedly, ordered a full-scale investigation into the leak. He has also confirmed that the draft opinion is a genuine document that circulates among the Justices of the Court. A pro-life campaigner displays a plastic doll representing a 12-week-old fetus as she stands outside the Marie Stopes Clinic in Belfast, Northern Ireland on April 7, 2016. (Charles McQuillan/Getty Images) One could only speculate about the motives of the leaker. One obvious explanation that comes to mind is that, in leaking the document, the leak will activate a fightback movement against the pending decision, even fomenting a revolt, thereby facilitating the maintenance of a constitutional right to privacy, which condones abortion. Florida’s Gov. Ron DeSantis described the leak as follows: “that’s a judicial insurrection by taking that out and trying to kneecap a potential majority.” The leak also raises the question whether the U.S. Supreme Court can overturn a constitutional precedent, especially one as old as the abortion decision. In the history of the Supreme Court, only on 145 occasions did the Court overturn its own precedents, which is approximately 0.5 percent of all the cases decided by the Court since its inception. Justice John Paul Stevens suggested that the Court’s precedent should only be corrected if it is “egregiously incorrect.” Chief Justice William Rehnquist also rejected the doctrine of judicial finality. He indicated in Herrera v. Collins, “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Hence, the Court can change its mind about whether earlier decisions have been correctly decided. The leaked document discloses that Justice Blackmun’s finding in Roe v. Wade, that the Constitution harbours a right to privacy, is highly speculative and represents and odious example of judicial activism, which involves the judges reading their own biases, philosophies, ideologies, and morality into the Constitution. Justice Alito emphasized in his draft opinion that sensitive issues should be decided by the state legislatures, representing the people in parliament. So, if Roe v. Wade is effectively overturned, the issue of abortion will be returned to the state legislatures where it properly belongs. President Joe Biden has suggested that the right to an abortion, created by the privacy provision implied in the Constitution by Justice Blackmun, be enshrined in federal legislation to neutralize the Supreme Court’s looming reversal of Roe v. Wade. Pro-abortion activists protest in response to the leaked Supreme Court draft decision to overturn Roe v. Wade in front of the U.S. Supreme Court in Washington, on May 3, 2022. (Alex Wong/Getty Images) However, such a recommendation is ill-advised because such legislation would need to be approved by 60 senators—a consequence of the filibuster arrangement—and this Senate majority is not likely to be achieved. But a more formidable obstacle to the adoption of this flagged legislation by the Senate is that it would effectively constitute an alteration of the 14th Amendment of the Constitution as authoritatively interpreted by the Supreme Co

The Potential Reversal of Roe v. Wade Precedent by US Supreme Court

Commentary

The story about the leaking of a draft opinion, which purports to reverse the Roe v. Wade decision, is met with great disbelief in the United States. Justice Samuel Alito writes in his decision that “Roe was egregiously wrong from the start,” and “We hold that Roe and Casey must be overruled.” In the document, labelled as the “Opinion of the Court,” he asserted, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The judgment in Roe v. Wade, rendered by the Supreme Court in 1973, and its accompanying case of Planned Parenthood v. Casey, allowed the practice of abortion on demand, until about the time the foetus would be able to live outside the womb.

Justice Harry Blackmun, writing for the majority in Roe v. Wade, discovered a constitutional right to privacy in the due process clause of the 14th Amendment to the U.S. Constitution, which relevantly states that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

He asserted that this right of privacy, found in the 14th Amendment’s “concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thus, this judgment has been part of American constitutional law for almost 50 years: a constitutional precedent, which is much maligned by pro-life supporters, and much treasured by pro-choice proponents.

The leaking of the draft opinion, reversing this precedent, raises the question how and why a Supreme Court insider, possibly a liberal law clerk, could leak such a sensitive draft.

The leak is unprecedented in the history of the Supreme Court. Chief Justice John Roberts, expectedly, ordered a full-scale investigation into the leak. He has also confirmed that the draft opinion is a genuine document that circulates among the Justices of the Court.

Pro Life Campaigners Rally Outisde The Marie Stopes Clinic In Belfast
Pro Life Campaigners Rally Outisde The Marie Stopes Clinic In Belfast
A pro-life campaigner displays a plastic doll representing a 12-week-old fetus as she stands outside the Marie Stopes Clinic in Belfast, Northern Ireland on April 7, 2016. (Charles McQuillan/Getty Images)

One could only speculate about the motives of the leaker. One obvious explanation that comes to mind is that, in leaking the document, the leak will activate a fightback movement against the pending decision, even fomenting a revolt, thereby facilitating the maintenance of a constitutional right to privacy, which condones abortion.

Florida’s Gov. Ron DeSantis described the leak as follows: “that’s a judicial insurrection by taking that out and trying to kneecap a potential majority.”

The leak also raises the question whether the U.S. Supreme Court can overturn a constitutional precedent, especially one as old as the abortion decision.

In the history of the Supreme Court, only on 145 occasions did the Court overturn its own precedents, which is approximately 0.5 percent of all the cases decided by the Court since its inception.

Justice John Paul Stevens suggested that the Court’s precedent should only be corrected if it is “egregiously incorrect.” Chief Justice William Rehnquist also rejected the doctrine of judicial finality. He indicated in Herrera v. Collins, “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”

Hence, the Court can change its mind about whether earlier decisions have been correctly decided.

The leaked document discloses that Justice Blackmun’s finding in Roe v. Wade, that the Constitution harbours a right to privacy, is highly speculative and represents and odious example of judicial activism, which involves the judges reading their own biases, philosophies, ideologies, and morality into the Constitution.

Justice Alito emphasized in his draft opinion that sensitive issues should be decided by the state legislatures, representing the people in parliament. So, if Roe v. Wade is effectively overturned, the issue of abortion will be returned to the state legislatures where it properly belongs.

President Joe Biden has suggested that the right to an abortion, created by the privacy provision implied in the Constitution by Justice Blackmun, be enshrined in federal legislation to neutralize the Supreme Court’s looming reversal of Roe v. Wade.

Epoch Times Photo
Epoch Times Photo
Pro-abortion activists protest in response to the leaked Supreme Court draft decision to overturn Roe v. Wade in front of the U.S. Supreme Court in Washington, on May 3, 2022. (Alex Wong/Getty Images)

However, such a recommendation is ill-advised because such legislation would need to be approved by 60 senators—a consequence of the filibuster arrangement—and this Senate majority is not likely to be achieved.

But a more formidable obstacle to the adoption of this flagged legislation by the Senate is that it would effectively constitute an alteration of the 14th Amendment of the Constitution as authoritatively interpreted by the Supreme Court.

Such legislative alteration violates the Constitution’s official amendment procedure as laid down in the document. Indeed, as the meaning of the Constitution is officially clarified by the Supreme Court, any distortion or modification of the Court’s authoritative interpretation of the Constitution would itself be a violation of the Constitution.

Undoubtedly, the reversal of Roe v. Wade will cause a tsunami of discontent among the pro-abortion forces in the United States. The pro-abortion brigade embraces the slogan, “My body, My choice.” However, as vaccine mandates prove, the slogan is selectively used to serve the interest of the pro-choice lobby.

But the implication of a right to abortion on demand in the Constitution also shows a lack of constitutional restraint because a right to privacy was never contemplated by the drafters of the 14th Amendment.

In reversing Roe v. Wade, the Supreme Court rejects the idea that the Constitution is a living document, which could be interpreted to suit modern-day conceptions of right and wrong. A living Constitution would make the interpretation of the document useless because it could no longer be relied upon to predict the rights which people have, and which will be protected by the Court.

The leak of the draft opinion is a deceitful and obnoxious act. The leaker, if he or she is identified, should be subject to criminal prosecution for interfering in the work of the Supreme Court and seeking to illegally influence the outcome of this case.

But if the draft opinion becomes the decision of the Court, it will be a confirmation that the Constitution is still the basic document, providing for good governance and the operation of the rule of law in the United States.

As Justice Alito indicated in his draft opinion, “Abortion presents a profound moral question.” It is a question that should be settled by the legislatures of the states.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël Moens

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Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (Boolarong Press, 2020) and “The Coincidence” (Connor Court Publishing, 2021).