Klukowski: Supreme Court Majority Should Issue Dobbs Abortion Opinion Now

The Supreme Court majority who voted to overrule Roe v. Wade should issue the latest version of Justice Samuel Alito’s opinion in Dobbs, taking the heat off the majority and showing America the truth of what the decision does, thereby exposing the lies of the left.

The left is engaging in an alarming – and illegal – campaign to intimidate the five conservative justices and moderate Chief Justice John Roberts to change the one or two votes necessary to make Alito’s opinion a dissent. (That is illegal because 18 U.S.C. § 1507 makes it a federal crime to protest outside a federal judge’s home to change his decision in a case, which is exactly what these activists are doing.)

The leaked Alito opinion showed a timestamp that it was circulated on February 10. The draft opinion is excellent. It is an imposing 67 pages of meticulous analysis exploring every relevant legal aspect, written in Alito’s clear and forceful style.

It is very likely that the other justices in the majority had already weighed in with their edits before the opinion was leaked, and those edits have either been incorporated or otherwise dealt with in the draft.

As a consequence, the majority opinion is probably in almost-final form now, if not completely finished. It probably would only take a few additional days after the leak to have it in picture-perfect form.

So those justices should release it now. It is their decision. The chief justice has no say in the matter unless he is part of the majority, which his questions during December 1’s oral arguments make unlikely. Whenever five justices decide something is ready to go, it is their prerogative to issue it, and make it official.

The timing is urgent. Only when the opinion is officially issued does it become a decision of the Supreme Court. Passions are running white-hot, acts of violence have been committed, and loud protests by furious leftists have gotten out of hand. Federal law enforcement at the Biden-Garland Justice Department has not taken action, nor has local law enforcement in Fairfax County, Virginia, and other places.

The nation can move forward once Dobbs – not Roe – is the law of the land, and these protests can end.

Typically what prolongs the process of issuing a decision is how justices respond to the majority opinion. Those who disagree with it organize to write one or more dissenting opinions. Then sometimes one or more justices agreeing with the majority choose to write concurring opinions emphasizing a particular point they consider important, or rebutting something from the dissent. The majority routinely includes references to dissenting opinions as well, adding their own rebuttal into the official opinion. In a perfect world the Dobbs majority could do so here as well.

But the world is not perfect, and Alito has already said for the majority everything that needed to be said. Issuing the opinion now would give its words immediate legal effect, and human lives would be saved in some states immediately.

So the majority opinion should be issued as soon as possible, and dissenting and concurring opinions – none of which carry the force of law – can be issued later whenever they are ready.

Besides, there will be redline comparisons for every word that is changed between the February draft and the final opinion. That is normally not a concern because a leak of this nature has never happened in 233 years.

But the justices need to consider the impact that legal scholars will examine every word change. Scholarly articles will be written about them. That too counsels in favor of just polishing the opinion up and getting it out.

Not only that, but every day that passes between the final issuance of the official opinion and the November midterms will educate tens of millions of swing voters that the left has lied to them for half a century about what would happen if the court ever overruled Roe. They have been told that women would die in abortions using coat hangers and all sorts of other terrible things would happen.

The late Sen. Ted Kennedy (D-MA) infamously used precisely that image to help destroy the Supreme Court nomination of Judge Robert Bork in 1987.

Instead, voters will find that the abortion laws where they live largely reflect their values. Some deep-red states will become truly pro-life, where unborn Americans will be protected equally with other Americans. But many states will allow abortions under limited circumstances, and a dozen or more deep-blue states will have no restrictions at all on abortions.

Not only that, but every American citizen has a constitutional right to interstate travel in the Privileges or Immunities Clause of the Fourteenth Amendment. So if a woman lives in a pro-life state, but is determined to get an abortion, she should be driving distance from a state where she can still get an abortion.

Matt Perdie / Breitbart News

Even for the middle-of-the-road states, this will still save lives. Statistics show that the longer a woman thinks about an abortion or considers information about abortion, the more likely she is to have the child, whether to raise or to offer for adoption.

Issuing this opinion will thus show what finally happens when the dog catches the car he has been chasing. Voters will learn that overruling Roe simply means that everyone has the right to vote on the matter like they do on other issues, and that the democratic process will prevail.

Millions of voters who describe themselves as pro-choice will then decide that they care more about five-dollar gasoline or the fact that they cannot buy baby formula than about whether someone needs to drive a few hours to get an abortion, and the pundits who predicted a Republican wipeout if Roe were ever overruled will be proven wrong.

Ken Klukowski is an attorney who formerly served in the White House and Justice Department and is a Breitbart News contributor.