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Make Life Secure from Abortion Simply and Quickly

Justice Alito’s draft opinion on Dobbs would make life not secure.

James Anthony
June 10, 2022

A draft opinion by Justice Alito on Dobbs v. Jackson Women’s Health Organization would reverse past supreme courts’ abortion opinions Roe v. Wade and Casey v. Planned Parenthood and leave it up to majorities of legislative representatives to make life secure.

Georgetown law professor Randy Barnett wrote that “Justice Alito’s was a now-standard ‘history & tradition’ substantive due process opinion …”

Professor Barnett concluded, “Expect a lengthy originalist concurrence from Justice Thomas … [1]” Indiana University professor Eric Rasmussen replied, ”So that explains why Alito, not the senior conservative judge, authors the opinion [2].” Professor Rasmussen asked whether a concurrence might say the “right to life means state murder laws must cover the unborn [3].” Professor Barnett replied, “In a noncommittal footnote [4].”

The draft opinion was leaked and was published on May 2 [5]. Final opinions may be issued around late June or early July [6].

The judicial power is delegated by we the people [7] to judges as our agents [8]. How would judges do this best, and how are judges doing this now?

A Judicial Opinion Is Law on a Case

To see what’s essential in a judicial opinion, consider first principles.

The Declaration of Independence states that governments are instituted justly if they secure individuals’ unalienable rights, among them life, liberty, and the pursuit of happiness.

The Constitution institutes the national government using key terms whose meanings are best defined by theory: life, liberty, and property; a republican form of government [9]; the people, state governments, and national government [10]; legislative, executive [11], and judicial powers; necessary and proper [12].

Each term had certain meanings to the drafters, initial representatives, initial public, subsequent representatives, and subsequent publics. But every user of these terms should recognize that these terms are ideals that can and should be approached more perfectly [7] as better understanding develops.

In math, a line is an ideal construct that has zero thickness, is perfectly straight, and extends infinitely in both directions. It can never be represented perfectly, and the first line a student draws is typically his all-time worst.

Similarly, on the Constitution’s key terms, original public understanding can provide surprisingly-bad guidance.

On slavery, for example, the plain words of the Fifth Amendment [13] do not in any way restrict the amendment to protecting liberty from the actions of the national government. And yet this amendment’s protection of liberty was ignored by the people and their representatives and appointees for generations.

Political power even dramatically shifted from the South to the North while slavery was in force, making it increasingly feasible to address this fundamental deprivation; but despite this, government people never took civil actions far short of war that could have formally disallowed slavery and that would have hastened slavery’s demise, but instead wrongly respected fatally-flawed past practice and ongoing interpretation. Old habits die hard. Even today the plain meaning of the Fifth Amendment is still ignored.

Statutes are laws. Every law’s operative parts consist solely of rules and sanctions.

Opinions are laws on cases. Being laws, opinions consist at most of rules and sanctions. But on cases, the applicable rules and sanctions already exist in national or state constitutions or statutes. The only part of an opinion that’s genuinely operative is its judgment of what amount of sanction will be applied in the case at hand.

Opinions go beyond this bare minimum at our peril. And yet opinions do go far beyond this bare minimum.

Modern Opinions Feature Everything but Justice

Given our naturally-progressing opulence [14], justices now have at their disposal evidence and research and arguments from counsel, research and arguments in amicus briefs [15], accumulated personal knowledge of past cases, research and arguments in books and journals, and research and arguments by law clerks.

Opinions now recount and cite history that, on key constitutional terms, deceives. On these key terms, context and primacy are irrelevant. Justice is all that matters.

In fact, if justices genuinely upheld their constitutionally-required oaths to support the Constitution [16], and in particular did this by not wrongly according “stare decisis” respect to past wrong opinions [17], the clearest indicator that they did not respect these opinions would be if they did not even cite these opinions.

Opinions now also often employ elaborate tests, which again deceive. Although it’s understandable that judges would want to document their decisionmaking processes, these processes are near-automatically taken to be rules. Rules, though, actually are one component of laws, and laws apply to all cases; and creation of laws is out-of-scope for judges.

The administrative state is unconstitutional [18]. Having judges unilaterally expand the administrative state is blatantly unconstitutional.

Strip away opinions’ extraneous content, and it becomes clearer that not only has this content wasted time and resources, but it has been instrumental in denying justice [19].

Make Life Secure from Abortion

On abortion cases, justices have long failed to address the fundamentals.

A new life, with new DNA, begins at fertilization [20]. No person shall be deprived of life without due constitutional military or criminal-justice process. Life must be secure before liberty matters. Majorities don’t robustly protect the rights of less-powerful minorities. Judicial branches are instituted to make individuals’ unalienable rights secure—starting with the first right, life, of the least-powerful minority, lives that are started but not yet born.

A best opinion on Dobbs would consist of one optional fact statement and one necessary sanction statement, as follows:

Life begins at fertilization. All statutes on killing apply starting at fertilization.

(Note that an ectopic embryo can’t survive, can’t be reimplanted, and places the mother at risk, so standard care, liability, statutes, and judgment plainly call for the mother’s life to be made secure.)

This opinion would be signed by all justices who don’t want their legacy to be that they focused on administrative irrelevances, and in doing so they let representatives continue the mass taking of life.

The USA’s supreme courts have not secured individuals’ freedom from more-powerful governments or government branches as England’s valuable Sir Edward Coke did [21]. This institution that Chief Justice Roberts seeks to keep people thinking of as legitimate has in fact so far failed to even secure individuals’ lives from itself.

The test of legitimacy of every government institution is whether its existence makes individuals’ unalienable rights more secure or less secure.

It’s high time that the members of the highest court step up and do their jobs. Here and now, the current supreme court can and should make life secure from abortion.


  1. @RandyEBarnett. “Justice Alito’s was a now-standard ‘history & tradition’ substantive due process opinion like Glucksberg, Alito’s plurality opinion in McDonald and Ginsburg’s majority opinion in Hibbs. Expect a lengthy originalist concurrence from Justice Thomas (like McDonald). #NotALeak.” Twitter, 11 May 2022, 2:49 p.m., twitter.com/RandyEBarnett/status/1524476823140241420.
  2. @erasmuse. “Thanks. So that explains why Alito, not the senior conservative judge, authors the opinion. You might find this useful.” Twitter, 11 May 2022, 4:09 p.m., https://twitter.com/erasmuse/status/1524496858848108546.
  3. @erasmuse. “Could Thomas or someone come out with a ‘right to life means state murder laws must cover the unborn’ concurrence?” Twitter, 11 May 2022, 4:09 p.m., twitter.com/erasmuse/status/1524497058908020739?s=20&t=GNwhWk4tgvoToKE_Rxm2Ww.
  4. @RandyEBarnett. “In a noncommittal footnote.” Twitter, 11 May 2022, 4:42 p.m., twitter.com/RandyEBarnett/status/1524505288690348032.
  5. Gerstein, Josh, and Alexander Ward. “Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows.” Politico, 3 May 2022, www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473. Accessed 10 June 2022.
  6. Gerstein, Josh. “10 Key Passages from Alito’s Draft Opinion, Which Would Overturn Roe v. Wade.” Politico, 2 May 2022, www.politico.com/news/2022/05/02/abortion-draft-supreme-court-opinion-key-passages-00029470. Accessed 10 June 2022.
  7. USA Constitution, preamble.
  8. Natelson, Robert G. “The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan.” University of Richmond Law Review, vol. 35, 2001, pp. 191-236.
  9. Anthony, James. “rSecession: County-Region Secessions to Form Small-r republican State Governments.” rConstitution.us, 9 Jul. 2021, rconstitution.us/rsecession-county-region-secessions-to-form-small-r-republican-state-governments/. Accessed 10 June 2022.
  10. USA Constitution, amend. 10.
  11. Anthony, James. “The First 1,461 Days of a Constitutionalist President.” rConstitution.us, 8 Jan. 2021, rconstitution.us/the-first-1461-days-of-a-constitutionalist-president/. Accessed 10 June 2022.
  12. Natelson, Robert G. “The Agency Law Origins of the Necessary and Proper Clause.” Case Western Reserve Law Review, vol. 55, no. 2, Winter 2004, pp. 243-322.
  13. USA Constitution, amend. 5.
  14. Peltzman, Sam. “Regulation and the Natural Progress of Opulence.” Economic Affairs, vol. 30, no. 2, June 2010, pp. 33-9.
  15. Anthony, James. “Justice Delayed and Denied.” rConstitution.us, 27 Aug. 2021, rconstitution.us/justice-delayed-and-denied/. Accessed 10 June 2022.
  16. USA Constitution, art. VI, cl. 3.
  17. Turley, Jonathon. “Clarence Thomas: ‘When Someone Uses Stare Decisis that Means They’re Out of Arguments.’” Jonathon Turley, 14 May 2022, jonathanturley.org/2022/05/14/clarence-thomas-when-someone-uses-stare-decisis-that-means-theyre-out-of-arguments/. Accessed 10 June 2022.
  18. Lawson, Gary. “The Rise and Rise of the Administrative State.” Harvard Law Review, vol. 107, no. 6, Apr. 1994, pp. 1231-54.
  19. Anthony, James. “Unprincipled Justices Add Regime Uncertainty.” American Greatness, 19 Jan. 2022, amgreatness.com/2022/01/19/unprincipled-justices-add-regime-uncertainty/. Accessed 10 June 2022.
  20. Condic, Maureen L. “Preimplantation Stages of Human Development: The Biological and Moral Status of Early Embryos.” Is this Cell a Human Being?, edited by Antoine Suarez and Joachim Huarte, Springer, 2011, pp. 25-43.
  21. Zimmerman, Augusto. “Sir Edward Coke and the Sovereignty of the Law.” Macquarie Law Journal, vol. 17, 2017, pp. 127-46.

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers, publishes rConstitution.us, and has written in The Federalist, American Thinker, Foundation for Economic Education, American Greatness, and Mises Institute. Mr. Anthony is an experienced chemical engineer with a master’s in mechanical engineering.


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