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In one of the most unprecedented bombshells in political history, an apparent draft of Justice Sam Alito’s unreleased majority opinion overturning Roe v. Wade was leaked to Politico Monday night. While this opinion will dredge up endless commentary stemming from legacy moral divisions on the issue, most of the political prognosticating will miss the mark. Moreover, as welcoming as this news is for any pro-life conservative, it does come with some potential pitfalls long-term unless we build on the momentum for other issues as well. To that end, here are some thoughts to consider about the fallout from Dobbs v. Jackson Women’s Health Organization:
1) The decision is a shield, not a judicial sword: Contrary to all the of the hand-wringing from the pro-abortion left, this decision doesn’t directly prevent a single woman from killing her baby, if she so chooses, and it won’t practically result in anyone losing out on this “right” in the scheme of things. Far from taking this issue away from the people and the states, as the left typically does in landmark court rulings, the Dobbs draft opinion actually reinstates the issue with the states. As Alito purportedly wrote in this rough draft, “In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … [I]t represented the ‘exercise of raw judicial power’ … and it sparked a national controversy that has embittered our political culture for a half-century.”
Henceforth, deep red states will likely ban abortion completely, states more in the middle will place restrictions on later-term abortions and other gruesome practices, and the blue states will likely double down on promoting more abortions. Maryland and California already have bills to allow killing babies after they are born, and undoubtedly, following this decision, they will fund abortion programs for out-of-state baby-killer “refugees.” Amazon is already offering to pay people to travel for abortions, and I’m sure this will become a cottage industry.
Thus, even if 20 states completely ban abortions, nobody will be too far from a place where they can sacrifice their child to Moloch. Contrast that to decisions from the court that prevent red states from enforcing immigration law, criminal statutes, defining marriage, or taking masks off kids, and we don’t have anywhere to move beyond the reach of the court.
2) Red states should move forward on many other issues: For decades, red-state governors and legislatures – and sometimes even GOP-controlled Congresses – refrained from doing the right thing because of the fear of federal courts interfering based on past erroneous case law. Abortion is the one issue that unites the wretched and failed Republican Party, so the GOP actually fought for it and decided to band together and pass legislation directly against Roe in multiple states. That, in conjunction with a united front at the political level, actually swayed Republican-appointed judges. The GOP judges are merely a reflection of the GOP politicians. Like everyone else, they rule mainly based on perception of public opinion, or at least the centrist Republicans. If Republicans fight as emphatically on other issues as they do on abortion – and pass legislation accordingly in multiple states – they might see similar results.
For example, Obergefell is even more unconstitutional than Roe in that it somehow asserted that states cannot define a marriage. In recent years, courts have hampered states from giving the death penalty in many cases, prevented them from enforcing immigration law, blocked them from defining gender, and banned them from cleaning up homeless camps. There is no reason why states should take this sitting down. They should pass laws, even in opposition to those past rulings. Alito’s opinion could be used for any of those cases. One of the central points of his opinion is the affirmation of Glucksberg’s test for a fundamental right – that it must be “deeply rooted in the Nation’s history and traditions.” So many of the liberal landmark opinions that have become sacred over time are antithetical to our history and tradition. They must all be challenged.
In fact, there is no time like the present. State legislatures should convene and pass numerous commonsense bills that were previously stymied by erroneous court precedent based on phantom substantive due process, a legal fiction that is implicitly overturned in Alito’s draft opinion.
3) Kavanaugh and Barrett will likely make us pay for this: This is somewhat counter to the previous point, but clearly Kavanaugh and Barrett are very reluctant to buck the system and likely screwed us on many other issues because they were saving their capital for this. Let’s not forget that they have ruled in favor of forcing health care workers and military members to get a potentially deadly shot and have screwed us on a number of religious liberty cases, among many other issues. In fact, in many ways the COVID cases were worse, because they are the equivalent of forcing someone to get an abortion, not just making it available. We need to remember that they will likely side against us on many pending issues that, frankly, probably affect our lives a lot more directly in the coming months and years in order to “maintain the integrity of the court.” I’m not saying this opinion is not cause for celebration, but this further underscores point #2 – that states need to blitz the courts by legislation against precedent on numerous other issues all at once, while building political momentum and an aura of inevitability.
4) Anti-abortion RINOs will be hard to beat: Red states are full of pro-life statist RINOs in legislatures and governor’s mansions. These are people who undermine us on every other issue and do the bidding of the Chamber of Commerce and Big Pharma, but get elected based on the abortion issue alone. They will now milk this one issue to death by promising a complete ban on abortions and will disarm conservative angst against them on other issues, making them very hard to beat.
5) Pro-life is about so much more than abortion: While potential reversal of Roe is cause for celebration, we must remember that the Left has moved on to bigger and greater things. They are now essentially aborting live-born adults in America’s hospitals with barbaric treatment, blocking lifesaving treatment, and forcing bio-medical tyranny on our bodies. The folks at the World Economic Forum want to control our bodies and minds in the most literal way in a new form of transhumanism. And unlike abortion, where we can avoid it for ourselves and our families, this is being forced upon us. Thus, we must be careful not to allow the Republican Party to use the celebration over a hard-fought victory on yesterday’s battle to obscure their treachery in being a party to today’s assault on life.
Overall, when factoring in the likely decision, as well as the politics behind the reprehensible leak of the draft, it has become clear that we cannot live together harmoniously as one people. Ironically, Alito’s draft opinion actually sets the stage for an amicable divorce. The left will stop at nothing to force their will upon us in all 50 states. We simply want at least a third of the country where we can live in peace with the values and legal system established by our Founders. They want to use the courts as a sword, while we are only using them as a shield.
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Blaze Podcast Host
Daniel Horowitz is the host of “Conservative Review with Daniel Horowitz” and a senior editor for Blaze News.