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The U.S. Supreme Court’s leaked draft opinion about Roe v. Wade is logical and just

On Monday, Politico reported on a huge bombshell in U.S. politics. A leaked draft opinion from the U.S. Supreme Court suggested it was planning to overturn Roe v. Wade. This is the landmark 1973 case that made abortion legal in all 50 states.

“Roe was egregiously wrong from the start,” the draft opinion written by Justice Samuel Alito noted. “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.”

Alito also wrote, “We hold that Roe and Casey must be overruled,” which refers to the 1992 case of Planned Parenthood v. Casey that reaffirmed Roe but allowed states to place some limitations. Hence, “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

In fairness, this document was labeled “1st Draft” of the “Opinion of the Court.” Changes to additional drafts can and do occur before the final opinion is released. And while Chief Justice John Roberts confirmed the authenticity of the draft opinion, he called the leak a “singular and egregious breach” and will investigate the matter.

Unsurprisingly, many Democrats – and a smattering of Republicans – went ballistic after Politico’s report was published.

“It concerns me a great deal that we’re going to, after 50 years, decide that a woman does not have the right to choose,” U.S. President Joe Biden said on Tuesday while visiting a weapons plant in Alabama. “If the rationale of the decision as released were to be sustained, a whole range of rights are in question. If this decision holds, it’s really quite a radical decision.”

Biden would also release a statement that said in part, “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

For the record, the chances of codifying Roe are pretty slim.

It would require a minimum of 60 votes in the Senate, and neither party is in a position to achieve this number in the current political climate. The President’s hope of mobilizing voters and electing more pro-choice Senators is wishful thinking, too. While support for abortion in all or certain circumstances has increased in recent years, Gallup’s May 3-18, 2021 poll found that 49 percent of U.S. respondents described themselves as “pro-choice” and 47 percent as “pro-life.” That’s not terribly dissimilar to Democratic and Republican voting behaviour in presidential elections from 2000 to the present.

Codifying Roe won’t happen in the near-deadlocked Senate. With Republicans about to make some gains in this year’s midterm elections, it likely won’t happen going forward. The issue of abortion may frustrate some Americans, but it won’t serve as a catalyst to the GOP’s political momentum.

Here’s something else to consider. No matter what your opinion is about abortion, Roe v. Wade has always been a terrible ruling and should be brought down.

I’ve leaned pro-life for about 15 years. It was a gradual and, at times, difficult shift. It began with a growing frustration of the tactics and individuals associated with the pro-choice movement. Intellectual curiosity led me to read a significant amount of technical papers, studies and books. I was also exposed to different intellectual perspectives from religious organizations and pro-life groups. My views on life, death and conception began to transform. My son’s birth was the final push that I needed, and I haven’t looked back since.

While I oppose abortion from a moral and ethical standpoint, I don’t believe in banning it. The state shouldn’t interfere in the daily lives of its citizens. If people want to pay (with private money) for this controversial procedure, and live with the consequences of their actions, that’s their choice to make.

The U.S. Supreme Court’s draft opinion, however, contains a position that I’ve always agreed with: Let each state have the democratic right to support or ban abortion.

The federal government may have clear jurisdiction over certain matters, but the principle of states’ rights is closer to what the American Founders originally envisioned. This is especially true when it comes to ethical and moral issues. To expect that a Democratic-controlled state like New York and California would think the same way about abortion as a Republican-controlled state like Alabama and Oklahoma is preposterous. Yet, Roe attempts to encapsulate nationwide opinion through one narrow pipeline. That’s one of many reasons why a significant number of Americans wanted to bring it down.

Hence, each U.S. state would be able to make its own unique decision about abortion. Some would legalize it, and others would ban it. Others could take middle-of-the-road positions based on second-trimester abortion procedures as well as whether abortions should be permitted in cases involving rape. A change in state leadership and government could lead to new abortion laws every few election cycles, too.

What’s exactly wrong with this? Nothing, when you really think about it. Unless you believe putting the decision-making power for abortion back in the hands of the people, through their elected representatives, is somehow illogical, unjust and yes, egregious.

Michael Taube, a long-time newspaper columnist and political commentator, was a speechwriter for former Canadian prime minister Stephen Harper.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


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