In the pilfered draft opinion authored by Supreme Court Justice Samuel A. Alito Jr., he wrote that Roe v. Wade — the court’s 1973 opinion that prohibited the states from banning abortions during the first six months of pregnancy — and Planned Parenthood v. Casey — the 1992 opinion that modified Roe but essentially upheld it — were both egregiously wrong when decided, are egregiously wrong today and so should be overruled.
The practical effect of overruling Roe and Casey will be to return the issue of the lawfulness of abortion to the states, thus liberating all states to legislate as they wish — to ban all abortions or to permit them even after the moment of birth.
Though I agree that Roe and Casey were and are wrong, I do so for reasons different than those stated in the Alito draft. One of those reasons — that unenumerated rights today must have a long history of recognition — is deeply troubling to those who believe that personal sovereignty trumps governmental power.
Here is the backstory.
The thrust of the Alito draft argues that abortion, which was unlawful in all states when the Constitution was adopted in 1789 and in 28 of the 37 states when the 14th Amendment was ratified in 1868, is not a matter for the federal government. Thus, the opinion holds, abortion is and has been pre-Roe exclusively a state issue over which the federal courts and Congress may not rule upon or regulate.
This opinion unleashes the states to declare that a class of persons is without protection from homicide. The reason the 14th Amendment is implicated is that its Equal Protection Clause requires that all state laws treat all persons similarly.
Thus — as Roe itself, and Casey by implication, acknowledges — if the baby in the womb is a person, all state laws against homicide must protect her. The 14th Amendment — which was essentially written so slavery and Jim Crow could never again exist here — prohibits the states from declaring that a class of persons — any class — is without the protections of the rule of law.
The Alito draft would impose a very loose interpretation of the 14th Amendment upon the states by permitting each state to decide if the baby in the womb is a person. But such a decision is beyond majoritarian moral competence. Stated differently, the majority — as represented by legislators — cannot decide who is a person and who is not. If it could, we could be back to the horrific evils of slavery.
The right to live is a natural right, and it attaches at the moment of conception. All states recognize this, as the baby in the womb can inherit property and can sue and be sued. Moreover, basic science teaches that the baby in the womb has human parents and, from the moment of conception, possesses all the genomic material in her tiny body to develop into a born person.
Not only does the Alito draft permit the states to permit baby-killing; it offers a more subtle yet ominous rationale, particularly for civil liberties.
In 1965, when the Supreme Court decided Griswold v. Connecticut, thereby invalidating a state law that prohibited the distribution of contraceptives to married persons, it did so on the basis of the right to privacy. Yet, privacy is nowhere mentioned in the Constitution. Thus, the court crafted a rule that held that if private behavior is deeply rooted in the nation’s traditions and history, the court will protect it.
Late Justice Arthur Goldberg wrote in a concurrence that the court’s search through history was unnecessary because the Ninth Amendment, which protects unenumerated natural rights, obviously protects privacy.
Justice Alito’s draft is ominous when it comes to the judicial recognition of rights not deeply rooted in the nation’s history and is utterly silent about the Ninth Amendment’s protection of rights too numerous to enumerate or not even thought of by its drafters.
The idea that our rights come from our humanity — a gift from God, not the government — is called natural law theory. This was first codified by St. Thomas Aquinas and accepted by British jurists and embraced by the American revolutionaries and the framers of the Constitution.
Aquinas himself likened natural law theory to peeling an onion, as each generation discovers new rights not known to prior generations. The Alito draft, by requiring a long history of the recognition of an unenumerated right before the courts will accept it, directly repudiates Aquinas and ignores the Ninth Amendment. Moreover, it was not necessary to do this in order to invalidate Roe and Casey because abortion is not a right. Rights come from God. Abortion at best is a privilege that the government grants and restricts.
So, those who fear the Alito analysis being applied to modern-day discovered rights — like privacy, the choice of a sexual partner and the choice of a mate — have a legitimate fear, which I share.
The Aquinas onion is peeled anew in every generation. The Alito view — that a right must be ancient to be recognized today — presumes ancestral omniscience that Aquinas knew is impossible.
Courts only rule on the cases and controversies properly before them. No court can issue a list of rights for all time. The ancient recognition of a right as a prerequisite to its contemporary acceptance defies the role of the court; namely, to be the anti-democratic branch of government that protects the lives, liberties and property of all persons from the overreach of Congress and the president and the states.
Permitting the killing of babies in the womb is the most tyrannical state overreach. It should be unfathomable; it is unconstitutional; and it ought to be criminal to have any meaning. But there is no reason to trample other rights while protecting the babies.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.