First State Times

Here’s how the response to the leaked draft Supreme Court opinion that would overturn the court’s decision in Roe v. Wade should have happened:

1. Everyone be calm.
2. Stand firmly against leaks from our most deliberative body. Disagreeing with the apparent direction of the court doesn’t make this breach of trust all right.
3. Read the opinion.
4. Then comment.

Instead, we got protestors at the Supreme Court within minutes of the leak. We got politicians like Barack Obama and Nancy Pelosi and Chuck Schumer using their thesauruses for adjectives to describe the Supreme Court in a way that would most rile up their supporters. And we got the sort of armchair analysis that is a sad symptom of our social media-addicted society.

Democrats have expended so much energy claiming that disinformation is the root of all evil in our country, only to spread disinformation about the Supreme Court like a wildfire.

Let’s debunk some myths.

Roe isn’t “settled law.” That’s a made-up concept. There is precedent and the courts consider precedent as part of their decision-making process. Justice Alito, in his draft opinion, discusses this matter in depth. He explains why Roe must be overturned, even considering the precedent because the underlying legal arguments accepted by the court in 1973 sit upon a cracked foundation. The opinion cites other significant cases where precedent was set aside, including in – probably most famously - Plessy v Ferguson. That case affirmed state-imposed racial segregation. Rightfully, Plessy was overturned by the court 58 years later. Is anyone willing to argue that the court erred because Plessy was “settled law"?

During the oral arguments in the Mississippi abortion case now before the court even the government’s attorney who sought to make the settled law argument was forced to admit that Plessy deserved to be overturned from the day it was decided. If the court gets the Constitution wrong, a future court must have the means to take corrective action. Alito’s decision does just that.

Alito also takes many pages to describe how the court erred in Roe. The question in 1973 and in 2022 isn’t whether abortion is right or wrong. The question is whether abortion is protected under the Constitution. It’s not. The 1973 court essentially wrote legislation from the bench and then on that basis established the Constitutionality of abortion. That’s not the court’s role. If the people want a Constitutional right to abortion, they should call a constitutional convention, adopt an amendment, and get two-thirds of the states to agree. The court’s job is to determine Constitutionality, not to create it out of thin air.

Abortion isn’t mentioned in the Constitution. The irony, of course, is that many of the same people who argue that abortion is protected by the Constitution to the extent that the justices lack any prerogative to overturn Roe also argue that gun rights (with real and clear language right in the text) aren’t protected and must be overturned.

One final point, and this is important for people on both sides of the debate. Alito’s decision doesn’t outlaw abortion. A switch won’t be flipped causing abortion to go from a federally protected practice to a federally criminalized practice. Alito’s opinion returns the decision to the states, where people have more direct impact and more of a say.

The people, rightfully, will decide the path forward. There’s nothing more American than that.

Lee Murphy is a candidate for Congress in Delaware