Re Dobbs v JWHO et al

A first draft of the Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization et al. has been released to the public.

The High Court has since confirmed the draft is authentic. As ever, the legal reasoning of Justice Alito contained herein is crisp and correct. There are two passages I would like to bring to the reader’s attention.

In particular, I want to emphasize the second passage bewailing the side effect of holding improperly decided cases like Roe and Casey to be precedent.

In the same way telling one lie necessitates telling many lies, one improper decision triggers a domino-row of improper decisions and distortions — a fact I am delighted to see addressed by the wording in this draft.

The words below are those of Justice Alito:

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Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. 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 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. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Sealia, J, concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

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Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.

The Courts abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.

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Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.

And although law review articles are not reticent about advocating new rights, the earliest article pro- posing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State.

At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful, and could have very serious consequences, at all stages.

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Note the clarity of the language: Zero. None.

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… Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.

Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any Court party and has never been plausibly explained.

My comment:

The Roe v Wade case was the first case read on my first day in law school at William and Mary’s.

It was also, without a doubt, the more poorly constructed jury-rig of legal reasoning I have ever read, before or since.

Every other case, and I do mean every single solitary other case, as far back as the Case of the Thorns from 1466 (see YB 6 Ed 4, 7a pl 18) listed the legal precedent on which the case rested, or quoted a law, or quoted a principle of natural law and showed the current application.

Not this one. Not Roe v Wade. It merely asserted certain rights suddenly retroactively existed and always had done, to commit what several states (and all history) condemned as a crime, and that these newly-discovered eternal rights overrode any state interest in protecting “potential life” (whatever that jabberwocky phrase means) after a certain point in time but not before, namely, the third trimester.

The court then listed a number of provisions of Constitutional law that could perhaps possibly justify the invention of a right to privacy, on which the alleged right of infanticide was based, but did not bother actually to make the justification saying how and why.

Later, in Casey, the third trimester rule would be replaced with a new standard, saying that any regulation of aborticide, include regulations applicable to every other aspect of medical practice, if it placed an undue burden on the woman, was unconstitutional — a standard that is no standard, for the court gave no guideline as to what constituted a due versus an undue burden.

Where did this standard come from? No where. One which provision of the Constitution was it based? None. What Common Law cases showed a long tradition of this natural law principle? Not one.

How, then, was it law? It was not. Rule of law is not rule by fiat. They are opposites.

Also note other constitutional rights, as free speech or bearing arms, are not hedged about by any undue burden test.

The legal reasoning was so bad in Roe v Wade I could not believe it had been written any a lawyer, much less a judge, much less Justice of the Supreme Court, much less several. Had any first year law student turned in a paper containing such weak and elliptical reasoning, he would be flunked out.

Whether one agree or disagree with the justice of granting a right to abortion, one cannot agree that a court of law is authorized to invent new laws out of the ether with no hint of precedent, law or logic.

The case was an abomination from the beginning. It was an outrageous imposition on the sovereignty of the states and of the people to determine the laws under which we shall live, and, worse, there was no legal logic behind it.

I was amazed, that first day in law school, that lawyers could not see the legal fallacy of interpreting a law that did not exist so as to making it spring into existence. Finally, finally, we have language in this draft pointing out the obvious. It is enough to restore one’s faith in the legal profession.


Except that it must have been someone in the legal profession, a justice or law clerk, who stole this draft and released it to the public. Whatever faith one might have is dashed.

This leak is akin to putting a hidden microphone in a confessional booth, and having a priest or deacon broadcast your most intimate sins to the world. It is a blasphemy.

As an attorney, the degree of dishonesty, dishonor, and contempt for rule of law and the safeguards of liberty needed to betray one’s oath, one’s sacred trust, and one’s manhood to publish a document entrusted and privileged to a lawyer is literally unimaginable.

Even having seen it done, even with the evidence before my eyes, I cannot believe that even the lowest of the low would stoop to such criminality.

We all know that lawyers have a reputation for sharp dealing and sly deceit. But even so, there were some things below what they were willing to do, or so I thought.

Since the only point was to encourage political violence to intimidate the High Court, this is a deeper breech of the unwritten social contract by which civilization endures than it seems at first.

We are one step closer to civil war, thanks to this. For civilization to endure, both sides must regard the rule of law as legitimate, and be willing to abide by unfavorable decisions. By this leak, meant to stir riots to coerce the Justices, it is clear one side is no longer willing.

If election fraud, misinformation governance boards, widespread censorship, and abuse of the legal system in witchhunts against political enemies and innocent protestors were insufficient, this adds one more straw to the camel’s back.

Stock up on food and fuel and ammo. Bad days are at hand.