After Roe v. Wade, Hope for Life and a Nation’s Soul

A prematurely leaked U.S. Supreme Court draft may send a polarized nation to the brink of civil war, but Roe v. Wade is not the first precedent to be overturned.

May 11, 2022 by Fr. Gordon J. MacRae

KA-BOOM! For many months, the U.S. Supreme Court has been examining a case from the State of Mississippi. It is one of the most widely anticipated abortion rights cases in decades, and it could result in the termination of a federal constitutional right to abortion established in the 1973 decision in Roe v. Wade.

In early May, a draft opinion authored by Justice Samuel Alito was leaked to and published by Politico. It is the first time in history that a draft of a pending Supreme Court decision was leaked to the media before it made its way through the Court’s decision-making process. The leaked draft leaves a distinct impression that the Court is (or was) about to overturn Roe V. Wade. The leak was an earthquake for government, the Supreme Court, and advocacy groups on both sides of the abortion issue.

Chief Justice John Roberts immediately requested an investigation of the unprecedented leak. I hope that by the time this is posted, the perpetrator(s) and process through which it was leaked are exposed. Explosions of furor over this in Washington are not exaggerated. The integrity of justice, the Supreme Court, the Separation of Powers, and government itself are at stake.

And there was another, simultaneous explosion, a nuclear one with a mushroom cloud spreading across this divided nation. The leaked news that Roe v. Wade may now be overturned has created a tidal wave of protest outside the Supreme Court and in cities across the land. On the left, the partisan protests are taking an unfortunate tone of vile hostility toward the pro-life movement, toward politicians who have been in sympathy with it, and toward Catholics who have traditionally been a driving force behind the Right to Life.

We should be proud of our defense of life while also avoiding any rhetoric of “we won and you lost!” The only potential winners here are the unborn who may have a chance to live if this leaked document becomes our reality. That is still likely months away.

President Joe Biden, who ran for office on a pledge to unite this polarized nation, has stoked the raging fires by denouncing the Court and calling for abortion rights to now be encoded in federal law. He knows full well that this is highly unlikely in the current divided House and Senate so his rhetoric can only be interpreted as an effort to ratchet up dissent and chaos.

In 2006, as Senator Joe Biden he backed an amendment to overturn Roe. Two years later, he became Vice President in the Obama White House. I can only interpret his radical flip, and his current hostility to the Right to Life, as evidence of a widely held belief that someone else has been doing his thinking for him on this and other crucial issues facing Americans. This is not a good time for the United States to have a puppet presidency.

The leaked document does not represent a final position of the Court, but it appears to have been written for the majority opinion. Whether leaking it was an attempt at sabotage remains to be seen. But the text of Justice Alito’s majority decision draft gives much hope to the pro-life cause.

A Misguided Emphasis on Precedent

The leaked draft affirms that the Constitution makes no reference to abortion and that no such right is implicit in any of its provisions. The draft states that there is no history or tradition that protects abortion as a right with a Constitutional guarantee of due process. This mirrors the position of the late Justice Antonin Scalia who held that the only such right found in the Constitution is the one that the (7-2) majority Court in Roe invented and inserted there in 1973. The draft concludes that “Roe was egregiously wrong from the start, its reasoning exceptionally weak, and with damaging consequences.”

In defending Roe, a lot of ink and rhetoric have been spilled over a legal principle known as “Stare Decisis,” a Latin term literally meaning “to stand by things decided.” The legal principle compels a court to stand by precedents for matters in which the same legal points arise in litigation. You likely heard the term, “respect for precedent” a lot in the Senate hearings vetting recent nominees to the U.S. Supreme Court.

Without exception, the precedent case referred to in these hearings was the 1973 decision in Roe v. Wade. The ruling barred states from adopting restrictions on abortion before the third trimester which was the point at which the Court determined in 1973 to be the time of viability of life outside the womb. The scientific evidence no longer supports that determination.

The principle of “Stare Decisis” does not mean that a precedent is set in stone with no avenue for reconsideration just because it is a precedent. There have been ten cases in U.S. Supreme Court history that have widely become known as “Landmark Precedents.” One of them is Roe v. Wade which had the effect of bitterly dividing the nation into two warring camps thus giving birth to the Pro-life Movement. Each year since 1975, two years after Roe, hundreds of thousands of U.S. citizens descend upon Washington for the National March for Life.

Another precedent also bitterly divided the nation setting in motion the events which led to the Civil War. That case was Scott v. Sanford, an 1857 landmark decision and the one that has been most compared by judicial scholars to the flawed judgment in Roe v. Wade.

In 1846, Dred Scott, a slave living in St. Louis, Missouri, sued contending that he, his wife, Harriet, and their two daughters were legally entitled to their freedom because their “owner” brought them to Missouri which was a free state. After being tried in Missouri state courts and in federal circuit court, the case went before the U.S. Supreme Court in 1856. In 1857, the Court issued its 7-2 split decision rejecting Dred Scott’s claims.

Writing for the Supreme Court majority, Chief Justice Roger Taney, like Joe Biden a self-identified Rosary-carrying Catholic, ruled that “blacks, even when free, could never be citizens of the United States” with rights to sue in federal courts. In his written decision — one that no person of just mind and well informed conscience could hold today — Justice Taney concluded that “blacks are so far inferior that they had no rights which the white man was bound to respect.”

The Taney decision for the Court majority — which, like Roe v. Wade, was also split 7-2 — also determined that the portion of the Missouri Compromise of 1820 that banned slavery in territories north and west of the state of Missouri was unconstitutional. The outcome of Dred Scott v. Sanford led directly to the Civil War.

To claim today that “precedent” alone should be the determining factor in such a case is tantamount to stoking the embers of that war. On January 1, 1863, President Abraham Lincoln’s Emancipation Proclamation ended slavery and paved the way for the Fourteenth Amendment which recognized the rights to life and liberty for all Americans. Those who would cling to “Stare Decisis” as an impenetrable judicial boundary are left today in a misinformed judicial quandary.

As the final fate of Roe v. Wade looms, I urge readers to arm themselves with some truths beyond the hysteria of protests covered 24/7 by cable news. I would like to ask you to read at least one or more of the posts linked at the end of this one, to share them, and to pray ardently for the cause of life and the integrity of this nation.

Be prepared to duck because a political storm is rising. There is on its horizon a distinct impression that the integrity of America and the cause of life are not at all beyond hope.

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Please also read and share:

Joe Biden, Cardinal McCarrick and the Betrayal of Life

Biden and the Bishops: Communion and the Care of a Soul

The Last Full Measure of Devotion: Civil Rights and the Right to Life