I have a lot of mail today about the leaked 1st Draft of the SCOTUS’ majority “Opinion of the Court signed by Justice Alito. It is a fine demolition of Roe v. Wade, an exposition of the obvious and well known, well expressed.
The case in question is, for shorthand, called: Dobbs v. Jackson Women’s Health Organization. I supposed that will become “Dobbs v. Jackson Women’s Health” or simply “Dobbs“.
You should read the DRAFT Opinion – HERE
‘We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted)
The right to abortion docs not fall within this category.
There it is. And…
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. 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 and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of
abortion to the people’s elected representatives.
‘Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown. v. Board of Education, the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. 347 U.S. 483, 488 (1954). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. …
Plessy v. Ferguson, that abomination upholding racial segregation, was effectively overturned by Brown v. Board.
Sometimes lawmakers simply get things wrong, for whatever reason or ideology they are shackled by. Shouting “Stare decisis!” isn’t good enough in some cases.
Traditionis custodes, the Plessy of the Francis Legacy, should be overturned, quam primum
In the Church there is no juridical mechanism of recourse by which plaintiffs can make a case again Traditionis. However, that doesn’t mean that TC can’t be tried in the court of opinion, and opinion expressed to authority. As a matter of fact, the faithful are urged in Canon Law to do so
Can. 212 §1. Conscious of their own responsibility, the Christian faithful are bound to follow with Christian obedience those things which the sacred pastors, inasmuch as they represent Christ, declare as teachers of the faith or establish as rulers of the Church.
§2. The Christian faithful are free to make known to the pastors of the Church their needs, especially spiritual ones, and their desires.
§3. According to the knowledge, competence, and prestige which they possess, they have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice to the integrity of faith and morals, with reverence toward their pastors, and attentive to common advantage and the dignity of persons.
TC is a miscarriage of justice and charity and it should be reversed.
Consider the Custos Traditionis initiative.
… an informal association of prayer and penance dedicated to two petitions offered to the Blessed Virgin Mary, which are
- the softening of hearts of those interpreting Traditionis custodes (bishops, Roman officials);
- the overturning of, or reversal of, or major amendment of Traditionis custodes.
I ask you to join with others, making an informal but serious pledge to do two things for the two intentions, above.
- recite the beautiful and powerful Memorare prayer DAILY;
- make an act of physical or material penance for the two intentions ONCE A WEEK.
Back to Dobbs for a moment.
Swap out some term in this additional excerpt from The Draft Opinion:
The nature of the Court’s error. An erroneous interpretation of the Constitution is always important, but some are ‘more damaging than others. ‘The infamous decision in Plessy v. Ferguson, supra, was one such decision. …
For reasons already explained, Roe‘s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.
When we get something wrong, it is folly simply to blunder along on the same course. When the blunder affects others, the rational, just, charitable thing to do is to retrace steps back to the blunder and make a correction.
As the Draft Opinion states:
The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner [concerning employee rights] would still be the law. That is not how stare decisis operates.