Making the case for Alito’s courage

Associate Justice of the Supreme Court of the United States Samuel Alito.
AP Photo/Cliff Owen
Supreme Court Justice Samuel Alito participates in the opening panel of Georgetown Law Journal’s annual symposium, in Washington, on Nov. 2, 2017.

I would like to put into layman’s easy-to-understand language what the issue of abortion is about. Millions of Americans vehemently argue that women have a constitutional right to abortion and a constitutional right to control their own bodies. They take this authority from two amendments to the Constitution: the 14th Amendment and the Fourth Amendment. Let us look at each.

The 14th Amendment says the “state” shall “not deprive any person of life, liberty, or property.” People supporting the constitutional right to abortion assert that the operative word here is “liberty.” Women have the liberty, that is, the right, to abortion at any time. This is to argue that a woman could abort a fetus or even a fully developed child up to the day before the baby is due. The framers of the Constitution surely would not have accepted this definition of “liberty.”

Now let’s look at the key portion of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The end of this amendment focuses on “the persons or things to be seized.”

Some believe that this amendment supports “the right to privacy.” But the amendment focuses on private possessions, on things. A police officer, for example, cannot without permission or probable cause search, say, the trunk of my car and seize possessions in it. I doubt that the framers asserted that such possessions or things included a fetus or fully developed child still in the womb.

What other legal principles are at work here? The right to abortion commenced with the Supreme Court’s decision in Roe v. Wade, l973, which has been upheld by the Supreme Court in several cases for the past 49 years. Surely, then, abortion is constitutional. This is the principle of “stare decisis” (let the decision stand). Precedent has moved the defense of abortion along. 

Until it met Associate Justice Samuel Alito.

I never, ever thought that the abortion decision would be overruled by the Supreme Court because it has been operative for 49 years. It seemed to be “settled law,” and court nominees in Senate hearings have agreed.

Even more so, I thought the Supreme Court would never overrule the right to abortion because that would mean ballistic reactions by millions upon millions of American citizens.

It also seemed that some members of the Supreme Court feared they would be hated, despised, threatened, and maybe even physically attacked for removing the prohibition on state laws against abortion, although if Roe fell, states would be able to legalize abortion at various stages of pregnancy through the elective legislative process.

I saw a little of this fear myself in working with the late Chief Justice Warren Burger as his chief of staff and staff director of the Commission on the Bicentennial of the U.S. Constitution. Twice I asked him privately about his vote in support of Roe v. Wade. Both times he got angry, saying that while he voted in favor of the constitutional right to abortion, he appended an objection that it not be “abortion on demand,” as it quickly became.

I’m speculating, of course, but it looks as though Justices Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett might join with Alito in rejecting a constitutional right to abortion. Chief Justice Roberts may or may not join them because he knows the hatred that rejection of the constitutional right to abortion would bring to the Supreme Court.

In thinking of the courage that Justice Alito had in writing his opinion on abortion, I am finally reminded of what C.S. Lewis said, “Courage is not simply one of the virtues but the form of every virtue at the testing point.”

The matter is not by any means over: At the very least each of the 50 state legislatures would be free to vote on abortion. The jury will be out for a long time.

Ronald L. Trowbridge, Ph.D., is a policy fellow at the Independent Institute in Oakland, Calif. He was appointed by President Reagan to the United States Information Agency and later became chief of staff for U.S. Chief Justice Warren Burger.

Tags 14th Amendment Amy Coney Barrett Brett Kavanaugh Fourth Amendment John Roberts Jr. Politics of the United States Roe v Wade Samuel Alito Supreme Court leak Warren Burger

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