Episode 325: Will Alito’s Leak Mean the End of the Roe?

A leak out of the Supreme Court suddenly made abortion and Roe v Wade the main topic of outrage from the Left.

But, aside from whether or not the opinion aligns with yours, what are the reasons that the Roe and Casey decisions should be overturned? Are there reasons (that are not religious ones or regarding morality) that those decisions don’t hold up legally?

Listen in to find out. As a bonus, I’ll read the introduction to the Alito opinion after the main show so you can some of his reasoning.

Mentioned links:

Supreme Court leak stuns nation

10 key passages from Alito’s draft opinion, which would overturn Roe v. Wade

Is Roe v. Wade About to Be Overturned? If So, What Are the Implications?

U.S. Supreme Court launches probe into leak of draft abortion opinion

Alito’s draft opinion [PDF]

Show transcript

A leaked draft of a Supreme Court opinion is completely unprecedented, and the content of the one leaked on the evening of May 2nd is remarkable in its own right. It appears, according to the opinion written by Justice Samuel Alito, that the Court is prepared to overturn Roe v Wade because it was poorly decided. That’s something that lawyers from both sides of the aisle have agreed with over the years. Inventing a constitutional right to abortion out of whole cloth is what the Court did, overriding the laws of every state and basically legislating from the bench.

Some are suggesting that overturning Roe would be “undemocratic” and would “politicize the Court”. What they fail to realize is that Roe itself was undemocratic and was itself politicizing. The idea that the “right” to abortion was somehow actually in the Constitution is dishonest from the start. Even worse was the whole trimester setup and what was allowed at each step of the way. Was that in the Constitution? No, it was plain legislating, a power that the Court should never have. We have a legislative branch of government for that, and so that politized the Court. And there is nothing less democratic than a few Justices writing rules for the entire nation, overriding the laws of every state. Overturning Roe restores democracy and gets the Court out of the political realm. Removing the issue from edicts from on high and back to the people is what democracy is all about.

Apparently, that’s the last thing Democrats want; to give the people a vote. Fine then, pass a law through Congress where something like this, that lays out when certain procedures are allowed, is supposed to be created. That, too, is the democratic way, where our representatives make the laws, not a majority of a panel of 9 Justices.

But do you see what the Democrats want to do in order to get that passed? They want to use a misuse of the judicial branch of government and turn the Court into what’s been called a “super-legislature”; rather than merely deciding cases based on the text of the Constitution, they can additionally create laws out of thin air. This is an abuse of the process. But remember; live by the sword, die by the sword. Once you create a “law” in this manner, later on, when the court changes hands by the luck of what President gets to name the justices, you can easily see new laws, or removal of old laws, just as easily. And because these Justices have lifetime appointments, those “laws” will be just as hard to change.