The leaked draft majority opinion of Justice Samuel Alito is setting the country afire as intended. The unexpected disclosure of the Supreme Court’s intention to overturn Roe v. Wade allows the rabid left time to mobilize in defense of procured abortion. It is intimidating the public with threats of violence and “outrage.”
Of course, the present debate is not about Justice Alito’s opinion. Most abortion activists probably have not read it. However, they do understand the harm it will do for their cause and spin the debate to reflect its dramatic talking points.
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Likewise, most pro-life Americans also have not labored through the 98-page document. They, too, know what the decision means for their cause. However, most have no illusions that the document is the bare minimum that might be expected from these judges. They know it will not stop abortion but understand that it can be a significant step toward that goal. If finally published, it could also be a massive psychological blow to the abortionist cause worldwide.
Both sides know that the document is not what it appears to be. However, they realize the symbolic value of the opinion and its powerful impact on the public. For the first time, the opinion shows that Roe v. Wade is not settled law in the eyes of SCOTUS. It forces the pro-abortion side to admit that this miscalled “right” can be reversed. Whoever wins this symbolic battle wins the war.
The Problem With Weak and Shaky Originalism
Two irreconcilable legal perspectives are at issue. The left denies the existence of a moral law. It thus rejects any restrictions upon an individual, even when represented by an innocent child in the womb. The pro-life position affirms a universal moral law, which declares that taking innocent human life is always and everywhere murder and must therefore be forbidden.
The Alito opinion does not enter into this debate of moral perspectives but merely points to it.
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The problem with Justice Alito’s opinion is that it is based upon a weak, shaky originalism, which is not a threat or victory to either side. The opinion rightly condemns Roe v. Wade as a poorly constructed law. However, it is an almost technical objection that does not enter into the moral right or wrong of the issue.
The justice’s position suffers from an unwillingness to return to the West’s long higher law tradition. He stays inside the false security of positive man-made law that can change with time. He avoids the solidity of a God-given natural moral law valid for all times, places and peoples based on an unchangeable human nature.
Such a shallow position resolves nothing. The justices need to have the courage to return to the natural moral law.
Abortion Is Not Settled Law
The merit of the released draft opinion is that it humbly acknowledges that Roe v. Wade is bad law. Even liberal jurists have admitted this over the years. The majority draft had the courage to proclaim that procured abortion is not “settled” law.
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Justice Alito further apologizes by admitting that the Supreme Court is to blame for this bad law that has polarized the county. He states that only the Court can fix the grave mistake that has taken so many lives over nearly half a century by overturning Roe. Twice, Justice Alito says that Roe “was egregiously wrong.” This is a first and welcome SCOTUS mea culpa.
In the Catholic judge’s words: “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.” (p. 6). Later on, Alito reaffirms this, saying, “Roe was. . . egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed” (p. 40).
An Unjust Law Is No Law at All
In pointing out Roe’s errors, the Supreme Court Justice reinforces the legal maxim lex injusta non est lex, i.e., an unjust law is no law at all. Having originated with Saint Augustine, the expression was expanded upon by Saint Thomas Aquinas. It proclaims that the purpose of law is to uphold justice for the benefit of the people being governed. An unjust law defeats the purpose of law and therefore conspires against it. This logical view corresponds to the natural moral law.
The humble apology offered on behalf of the Court can serve as a first atonement for a national sin that gravely offended God and deeply stained America’s honor.
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However, much more is needed. An unjust law can never be settled law. The Justices need to do more. They must drum up the courage to enter into the great moral battle at the explosive center of America’s Culture War. They must abandon the amoral, relativistic, and secularist fiction of originalism that allows for half-solutions. As leaked, the Alito majority draft will uphold abortion bans in half the states while recognizing the legality of post-birth abortion in others. The Court’s cowardly omission to condemn the moral wrong of procured abortion only aggravates the nation’s problems.
SCOTUS must embrace lex justa. Anchored in the higher natural moral law, a just law is and will always be true law.