The Supreme Court of the United States of America has voted to strike down the landmark abortion 1973 case Roe v. Wade, according to a leaked draft majority opinion written by Justice Samuel Alito, a sign described as “very encouraging” by the Archbishop of Sydney Anthony Fisher OP, and other leading Australian Catholics.
The majority opinion drafted by Justice Alito in Dobbs v. Jackson Women’s Health Organisation, a challenge to a 2018 Mississippi state law banning abortion after 15 weeks, states that “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 [1992 case Planned Parenthood v. Casey] have enflamed debate and deepened division.”
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Rose v Wade revisited
The draft opinion was leaked to the US website POLITICO and published on 2 May, and reprises views from the minority judgment in Roe that the decision to establish abortion as a fundamental right was a “raw exercise of judicial power” amounting to judicial activism.
“It’s important to remember what actually happened in Roe v Wade,” Professor Michael Quinlan, National Head of the School of Law at the University of Notre Dame Australia, told The Catholic Weekly.
“The court took medical and other evidence and it formed a view in which it divided up pregnancies into different trimesters, and said that States had power to legislate in particular ways in relation to particular trimesters.
‘A decision that made no sense’
“The minority judges in that case said their concern was that sounded very much like what you’d expect a parliament to do, to get into that kind of detail. And they were completely correct about that.”
Planned Parenthood v Casey later abandoned the trimester divisions in favour of “foetal viability”, which Justice Alito said “makes no sense” as a legal standard.
“Viability is the point at which the child has a possibility of surviving if delivered unharmed, respected bioethicist Professor Margaret Somerville told The Catholic Weekly.
Opposition not enough: ethicist
“This raises the issue of whether a right to abortion is only the right of the woman to evacuate her uterus or also includes having the child intentionally killed before delivery when it might have a chance of living – a very sensitive issue.”
“The number of abortions worldwide every year is a tragedy: The World Health Organisation puts that number at 73 million.
“We must, however, understand that it is not enough to oppose abortion – that is only half of what is ethically required – we must offer support to vulnerable women who see abortion as their only feasible option for dealing with an unwanted pregnancy.”
Precedent not permanent
Among other issues, Justice Alito also considered the question of whether the doctrine of stare decisis – that courts are bound by precedent – meant the Supreme Court had no authority to overturn Roe and subsequent cases.
“[W]hen one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake,” he wrote.
While a Constitutional amendment could alter the decision, “our Constitution is notoriously hard to amend”.
“Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions.”
‘A decision in collision with the Constitution’
Later in the draft opinion he wrote that “Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors”. The majority opinion likely has the support of the Republican Party appointees, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas and Alito, who drafted the judgment.
Democrat-appointed judges Sonia Sotormayor, Elena Kagan and Stephen Breyer are reportedly planning to dissent, with Chief Justice John Roberts’ position unclear.
Archbishop Anthony Fisher OP of Sydney said that, “While the decision will not end the scourge of abortion in the United States, it will give each state the opportunity to prohibit or at least restrict this horrific practice that has claimed the lives of more than 60 million unborn children since Roe v. Wade was decided.”
Archbishop Fisher: a sign of hope
“It is also a great sign of hope for those of us here in NSW. Just three years ago, we saw extreme abortion-till-birth laws passed and we are now on the brink of seeing the legalisation of euthanasia and assisted suicide.
“For us here in NSW, today’s news is a reminder that the advocacy for the dignity of all human life is an ongoing task, the fruits of which can often take the work of entire generations.”
“For us here in NSW, today’s news is a reminder that the advocacy for the dignity of all human life is an ongoing task, the fruits of which can often take the work of entire generations.” – Archbishop Anthony Fisher OP
Professor Greg Craven, constitutional lawyer and former vice-chancellor of the Australian Catholic University, expressed concern over the leaking of a judicial opinion from the highest court in the US.
“The US Supreme Court is a political animal, and routinely is the object of political pressure,” Professor Craven said.
“If the purported majority opinion has indeed been leaked, then this probably has been done by pro-abortion forces in a bid to pressure the Court.
“Even in America, it is hard to imagine this happening, as it not only would be a gross contempt of court, but probably a grave constitutional conspiracy.”
Professor Craven said the draft opinion, if genuine, will have two major implications.
“Specifically in relation to abortion, it would mean not only that pro-life states could now return to restricting abortion, but symbolically, that the entire direction of abortion jurisprudence had been reversed,” he said.
it would mean not only that pro-life states could now return to restricting abortion, but symbolically, that the entire direction of abortion jurisprudence had been reversed
“More widely, it would be a major step by the Court away from progressivist constitutional interpretation, towards originalist or literal approaches.”
Originalism refers to theory of Constitutional interpretation that sees its “original” meaning as fixed or stable at the time it was written, and tends to be favoured by conservative judges.
Professor Quinlan said if the decision to overturn Roe proceeds, it will be a “clarion call for those opposed to life to campaign for the reform of the Supreme Court”, including by increasing the number of judges who can be appointed, in a practice known as “court packing”.
No local fallout
The decision may have little immediate impact in Australia, because Parliaments have largely taken up the issue of abortion and other life issues.
“But every change in the law, particularly in Western countries with whom we have similarities, can have positive effects,” Professor Quinlan said.
Sydney Bishop Richard Umbers, the Australian Catholic Bishops’ Delegate for Life, told The Catholic Weekly pro-life supporters awaited the final ruling of the Supreme Court “with the hope that it will be one step among many towards rebuilding a culture of life.”
“Overturning the Roe v Wade ruling in the U.S presents a new opportunity and responsibility for U.S state leaders to protect the lives of the unborn for which they must be held accountable.
“Catholics are called to defend innocent human life both before and after birth with legislative protections. Without protecting this fundamental right to life, no other rights are comprehensible.
“Abortion is falsely presented as a solution to women in need of support, when in fact it devalues both mother and child and destroys life, peace and families.
“All women who are pregnant need the support of a community around them, beginning with the recognition that life is precious,” he said.
At the time of printing the leaked opinion had sparked protests outside the Supreme Court building, calls from Democratic politicians to pass Federal abortion laws, and applause from US Catholic bishops.
“Tonight I am thinking of all the years of hard work by pro life people of all faiths and none. Years and years of patient advocacy, help for unwed moms, political engagement and more,” Archbishop Salvatore Cordileone of San Francisco posted on Twitter.