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Opinion The leak is a shock. What the draft decision says is not.

Supreme Court Justice Samuel A. Alito Jr. in November 2018. (Jim Young/Reuters)

The least surprising thing about the shocking leak of Supreme Court Justice Samuel A. Alito Jr.’s draft opinion overturning Roe v. Wade is what’s actually in the opinion.

There is a deep consensus within the broad conservative legal world that Roe was wrongly decided a half-century ago. The absence of a clear textual right to an abortion, combined with the ruling’s wholly invented trimester system that guided when abortions could be banned, struck conservatives as a quintessential example of a court run amok. Over the years, this view was has been expressed by many liberals, too, including Harvard Law professor Laurence Tribe and Stanford Law School dean John Hart Ely. No one should be surprised, then, that five distinguished conservative legal minds would concur that Roe is bad law.

And that’s exactly what Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization states.

As my Ethics and Public Policy Center colleague Ed Whelan points out, Alito demolishes step by step the constitutional conceits underlying Roe. He argues that abortion was a crime, either in common law or via statute, in an overwhelming majority of states at the time the 14th Amendment was adopted. That amendment’s due process clause, then, does not and cannot confer a right to an abortion that its drafters did not contemplate. Furthermore, Alito notes, the court’s opinions in landmark cases such as Griswold v. Connecticut do not compel a contrary decision because abortion involves the taking of “fetal life.” That’s a wholly different matter, and thus Roe’s creation of abortion rights does not logically flow from an individual right to privacy.

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Alito goes on to argue that the principle of stare decisis, the judicial doctrine that a case once decided should stay decided, does not prevent reversing Roe, recounting a host of reasons. But he also tellingly notes the many times the court has overruled earlier decisions — a list that includes progressive staples such as Obergefell v. Hodges (establishing a right to same-sex marriage) and Lawrence v. Kansas (establishing a right to intimate same-sex relations). Indeed, the most famous example is Brown v. Board of Education, which overruled Plessy v. Ferguson’s execrable “separate but equal” doctrine. Alito’s message to the left: What’s good for the goose is good for the gander.

I know that none of this will satisfy abortion rights advocates, but I doubt many of them are surprised, either. This is exactly what they have long feared — and what those of us who are pro-life long hoped for.

Those advocates might hope that public pressure arising from the leak will cause one of the justices to change their mind, but I also doubt that will happen. Every one of the five justices in the majority has already been subjected to ferocious public attacks from the left, and especially from abortion rights advocates. Every one of them, too, is deeply steeped in the decades of conservative jurisprudence that undergirds this moment. Anyone who thinks these justices can be shamed or threatened into submission on this topic doesn’t know who they’re talking about.

In fact, it is entirely possible this egregious breach of court practice has the opposite effect. Above all, Chief Justice John G. Roberts Jr. is an institutionalist who wants to protect the court’s legitimacy and integrity. Any “switch in time” that arises from the leak would destroy the court’s legitimacy among conservative Americans, forever tainting it as a purely political branch that can be bent by lobbying and threats. The chief might decide to forestall that by putting aside any doubts he has to join the court’s holding, if not its full opinion. A 6-to-3 ruling in Dobbs, joined by a stirring concurring opinion from the chief about the need for impartial justice, would be a fitting rebuke to the heinous leak.

Most other Western nations have settled their abortion debates through the democratic process. Alito’s opinion simply proposes that the United States take the same course. After nearly 50 years of Roe, that is akin to ripping off the Band-Aid. It is the right answer, for our democracy and for unborn children everywhere.

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