The "Alito 5" Must Stay the Course
In February, five Supreme Court Justices voted in camera to overturn Roe v. Wade and send the issue of abortion back to the states, where it resided until 1973.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had all signed on to the majority opinion overturning Roe that had been drafted by Justice Samuel Alito.
The right-to-life movement was only weeks away from a stunning victory in its half-century struggle to overturn Roe.
This suggests that the leak to Politico of the Alito draft was the work of a saboteur seeking to derail the course of the court by the media explosion he or she knew it would ignite.
Whoever leaked Alito's draft, it was a violation of an oath, an unethical act and a betrayal that ought to see the perpetrator fired in disgrace and disbarred permanently from the practice of law.
But the crucial issue now is for the Alito Five, even if unwedded to the exact language of the Alito opinion, to stay the course until the ruling comes down in late June.
For, on the substance of the abortion issue, Alito's opinion is dead on:
"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 ... enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
"We hold that Roe ... must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."
Indeed, at the time of Roe, January 1973, the U.S. had a long history of punishing "abortionists," and the laws under which they were prosecuted were "spurred by a sincere belief that abortion kills a human being."