SCOTUS’ Leaked Opinion Is Not What You Think

May 5, 2022 by David Fowler

SCOTUS’ Leaked Opinion Is Not What You Think
Pro-life advocates are naturally excited that the United States Supreme Court may be ready to reverse its abortion-rights jurisprudence.  But I found the leaked opinion amusing.  One such amusement was the Court opening and closing its opinion with the assertion that abortion presents a “profound moral question” and then proceeding to ignore it. Truthfully, Justice Alito’s opinion is more despicable and disgraceful than the Court’s treatment of slaves and their descendants in the infamous decision involving slave Dred Scott.
If you are not familiar with the Court’s leaked abortion opinion (“Dobbs”) or the Scott opinion, this is a quick primer.  
The final substantive paragraph in Dobbs reads as follows, at least for now: “We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Consequently, the opinion overrules Roe v. Wade (1973) and Casey v. Planned Parenthood (1992).”

In the Scott decision, the question was whether the fact that Mr. Scott was a “negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves . . . disqualif[ied] [him] from becoming a citizen, in the sense in which that word is used in the Constitution of the United States.” The answer was “yes.” 

The Rationale and Implications of the Scott Decision

In Scott, the Court reasoned that Mr. Scott and others like him “were not intended to be included, under the word ‘citizens’ in the Constitution.”  
The reason? “[T]hey were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” (emphasis supplied)
Persons like Mr. Scott could not attain a level of personhood such as would ever allow them to be a citizen of the United States. Worse yet, the Court’s decision meant states were free to reach the same conclusion—he and others like him could be denied state citizenship too!
Mr. Scott and other persons like him were subject to being unclaimed and unwanted persons in the eyes of any government.

Is Abortion Really a Profound Moral Question?

Abortion is not a profound moral question until we first know what it means to be human. 
Even then, abortion is not a constitutional Fourteenth Amendment question until we determine whether all human beings are “persons” within the meaning of that Amendment. If not all human beings are within the class of “persons” described by the Amendment, the unborn are excluded from the Fourteenth Amendment’s guarantee that no state will deny any “person of life….without due process of law.”
Dobbs flat out punted on the truly profound moral question upon which the morality of abortion depends: “What is a human being and are all human beings persons?”

Why Dobbs is Worse than Scott

The relationship between the Scott decision and Alito’s Dobbs opinion should now be clear.
The Scott decision said Mr. Scott was of such an “insubordinate and inferior class of beings” as to leave him a person with the possibility of not having any citizenship. But at least he and his “class of beings” were still persons for purposes of the Fifth Amendment which prohibits the federal government from taking the of life any person without due process of law.
But Alito’s Dobbs opinion, as of now, says the unborn are such an “insubordinate and inferior class of beings” as can be disclaimed as person by the federal government and the states!
Some unborn human beings' lives will be saved if the anticipated decision in Dobbs stands, and for that we can be grateful. However, the unborn as a class of human beings remains lost—“unsaved”—under the Constitution.

What the Dobbs Rationale Portends for Alito and the Court

I believe, in time, Justice Samuel Alito, who wrote the leaked opinion, will be looked on as scornfully as Justice Roger Taney who wrote the Scott opinion. 
Why do I believe that? Because God cannot be perfectly good and just and allow His image as constitutive of human beings to be erased or forever suppressed by other human beings playing God—whether as a matter of ethnicity in Scott or of being itself in Dobbs.  
Justice Alito and whoever his concurring colleagues may prove to be may content the pro-life community by saying abortion is a profound moral question and reversing two horrible precedents. But he and his colleagues cannot fool God in their profession to know nothing about the most profound and fundamental moral question the case involves.

My view of the Court remains the same as expressed in my book, The Naked Court:
If God is true to Himself and to His Word, the Supreme Court justices who continue to reject God’s truth claims, as well as the Court itself, must be under the judgment of God. What has been true of other rulers and entire nations over the course of history will be true here as well. Where is their glory now, the poetical figure Ozymandias would have us ask? 

If the majority of the justices do not in some way repent of their pride before God in their works, then, in time, the wrath of God will be revealed from Heaven against that institution (Romans 1:18). But do not make the mistake of looking for fire falling from Heaven on the Supreme Court building and, in the absence of that, think God’s judgment did not fall. Institutionally, God’s judgment may be simply removing from the eyes of the people the Court’s institutional integrity. (emphasis added).

It is happening. Where it will end, I don’t know, but I know Alito’s opinion shows the majority has not repented on the most “profound moral question” of all.
Through May 9th you can request a free pdf version of the book, The Naked Court, by sending an email to

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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