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Colorado Springs Gazette: If it stands, the leaked ruling will democratize abortion

By 05/04/2022 | updated 4 years ago

Two disgraceful and related events make a mockery of our constitutional republic.
 
1. Monday’s leak of the U.S. Supreme Court’s draft ruling in Dobbs v. Jackson.
 
2. The court’s 1973 ruling in Roe v. Wade, which the draft ruling will overturn if it stands.
 
The leak undermines a carefully crafted system of checks and balances. Supreme Court hearings are public, but deliberations are private. That’s by design. Justices are supposed to make decisions that uphold the U.S. Constitution, the set of rules that keep federal authority in check.
 
Rulings are not supposed to uphold whimsical public sentiment. Unlike Congress, the court is not a legislature and should never act like one. It answers to the law, not the electorate. Given the preruling leak, justices will endure the pressure applied to politicians – including protests and potential death threats. This should not sway a jurist, but each is only human.
 
More damaging than the leak is the case the draft would overturn.
 
The Gazette’s editorial board has argued for decades there is no constitutional basis for the court’s Roe v. Wade decision, which imposed a one-size-fits-all abortion law on all states. Regardless of anyone’s views of abortion-on-demand, the ruling represents an abomination of this country’s founding as a union of sovereign states served by a central government.
 
Laws that suit Colorado – i.e., pot legalization – don’t reflect the values of Bible Belt states. In the interest of maintaining regional diversity, our Constitution leaves most lawmaking up to the states. The 10th Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively … “
 
In advance of the Roe ruling, Colorado football legend and then-Justice Byron “Whizzer” Raymond White warned his colleagues they had no authority to regulate abortion. His dissent blasted the ruling as an “exercise of raw judicial power.”
 
Without a legal basis, the majority went legislative and concocted the nationwide right to an abortion. They invented a constitutional right to “privacy,” and therefore abortion, by cherry-picking and stretching the First, Fourth, Fifth, Ninth and 14th Amendments. The ruling was a fabrication built on a fabrication.
 
If there’s a constitutional right to privacy, abolish the federal income tax. If we have this right, the IRS has no authority to discover an individual’s income. If we have guaranteed privacy, don’t conduct background checks for federal employment. Don’t even think about vaccine mandates or search warrants.
 
The leaked majority opinion, written by Justice Samuel Alito, crushes any belief we have a constitutional privacy right.
 
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” the draft states.
 
Alito says the Roe decision, and a 1992 ruling that upheld it in Planned Parenthood v. Casey, “enflamed debate and deepened division.”
 
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the draft states.
 
It cites the new Mississippi law to describe gruesome details of abortion procedures. It explains that only six other countries allow abortion on demand after 20 weeks. These include North Korea, China, Vietnam, Canada, Singapore and the Netherlands.
 
If it stands, the ruling would have no immediate effect on Colorado – aside from making our state more of a destination for out-of-staters seeking abortions.
 
“CO remains a state where freedom is respected and where any person has the ability to live, work, thrive, and raise a family on their own terms,” tweeted Colorado Gov. Jared Polis after the leak went public Monday.
 
That’s the view of a powerful, wealthy white man who last month signed the country’s most permissive abortion law – allowing abortions during labor and delivery and prohibiting “postnatal” regulation of “reproductive rights.” The bill Polis signed explained how abortion provides economic and social benefits, especially when available to people “of color” and of “low-income” stature.
 
The leaked draft blows a hole in the “rights” justification promoted by Polis and others in power.
 
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”
 

If the ruling stands as drafted, states will decide the rights of the unborn and their mothers. This country comprises a laboratory of states. As former Justice Antonin Scalia told a member of The Gazette’s editorial board, the states – not nine lawyers – should resolve our most intractable conflicts.

Colorado Springs Gazette editorial board

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