The End of the Road for Roe?

An anonymous leaker broke generations of Supreme Court norms this week by passing to Politico a draft decision from Justice Samuel Alito, Dobbs v. Mississippi. This case was aimed at overturning Roe v. Wade (1973).

That draft decision, reportedly supported by a majority of the Court including Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, junks Roe in its entirety, denying the existence of any constitutional “right to abortion”; the majority opinion also trashes Roe’s follow-up case, Planned Parenthood v. Casey (1992), which substituted a vague and unworkable “undue burden” test to determine whether or not a law restricting abortion was unconstitutional in place of Roe’s trimester framework. Alito writes, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.”

Alito, however, is right. Roe is an illegal legal ababomination that has no support in our national history, the Constitution or any precedent. In order to limit the power of millions of Americans, the Supreme Court simply usurped it. Roe did not end national debate on abortion. It froze it, which prevented states from adopting rules that were more tailored to them. Roe’s repeal would only allow states to decide the issue of abortion; New York would still permit abortion to be performed until the birth while Texas would prohibit almost all forms.

According to the Left, Roe’s repeal will lead to a fascist world. President Joe Biden called the decision “radical,” and said, “The idea that we’re letting the states make those decisions, localities make those decisions, would be a fundamental shift in what we’ve done.” Senate Majority Leader Chuck Schumer called the decision a “dark and disturbing day for America,” even as Democrats called for attempting to nuke the filibuster to codify Roe into federal law. Sen. Elizabeth Warren, D-Mass., said she was “angry and upset … This is the day that Republicans have worked for many decades. They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want.”

Warren refused to answer why she opposed letting Americans vote on this issue, even though so many Americans agree with her view. However, it is easy to see the truth. It is as obvious as why the Left seems so sanguine that the Draft Decision was leaked. Democratic norms, Constitution and principles are not of any consequence. Only the result matters. For decades, the Left has seen the Supreme Court as an institution that is reserved for progressive policymaking. Dobbs in Mississippi will restore the Court’s original role as an impartial arbiter rather than a Left-wing superlegislature. The Left can’t accept that. The Left would rather have a Supreme Court that enforces Leftist social priorities directly from the top.

This is especially true for abortion. It’s the most important Leftist sacrament and an act of great import. Abortion is a power that denies the objective value human life. It also signifies willingness to indulge in self-serving moral relativism. The absence of abortion opens up the possibility of moral consequences, the idea that life’s value isn’t arbitrary or subjective, and that both men and women have responsibilities to their children. This all challenges their fundamental worldview. The Left is unable to bear the thought of that logic being exposed to their voters. To prevent this, they’ll use all of their tools.

Ben Shapiro, 38, is a graduate of UCLA and Harvard Law School, host of “The Ben Shapiro Show,” and editor-in-chief of DailyWire.com. He is the author of the New York Times bestsellers “How To Destroy America In Three Easy Steps,” “The Right Side Of History,” and “Bullies.”

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