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Floor Speech

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Mr. LEE. Mr. President, Justice Alito's draft opinion in Dobbs v. Jackson Women's Health is a masterpiece of jurisprudence, and it is a long overdue victory for the preborn. It is also a vindication of nearly 50 years of tireless efforts by the pro-life movement, the conservative legal movement, by textualists and originalists, and by President Trump's recent judicial appointments.

I am proud to say that this decision vindicates the efforts of people like my late father, who wrote an amicus brief in City of Akron v. Akron Center for Reproductive Health.

Incidentally, it was in that context when I first had an encounter with individuals on the opposite side of this issue. I was 11 years old when my father submitted that amicus brief while serving as President Reagan's Solicitor General.

One morning, a busload of pro-abortion rights protesters showed up outside of our home. My parents and my siblings were out running errands, going about various activities. I found myself alone that morning. I went outside to talk to the people who had shown up in our quiet suburban neighborhood in a Greyhound-size bus carrying signs and shouting slogans of one sort or another.

I introduced myself to the woman who appeared to be in charge. Her first words startled me. She said: Well, hello, little boy. We are not here to hurt you.

I thought that was strange. It ought to go without saying. It is a little alarming when that is the first thing someone says to you. I asked her what she was doing. She told me that they were there because they disagreed with some things that my father had submitted to the Supreme Court of the United States in that amicus brief to which I referred.

I then asked the question: Why do you have to do it on my lawn? She responded in a way that I found curious. She said: Well, we are trying very hard not to step on your lawn. We are actually staying on the sidewalk.

I didn't yet understand the difference between an easement and a walkway and whether they had entered onto the curtilage of our home. All I knew was that it seemed like a strange place to be doing this, in front of a private residence, a home where a public official lived and slept and raised his children.

I think about the tireless efforts of people like my late father to stand up for the rights of unborn human beings and for the injustice brought about by Roe v. Wade--a 1973 decision by the Supreme Court that stripped power away from the American people, stripped their opportunity to make decisions regarding abortion at the appropriate level of government, to have those decisions made by their own elected lawmakers rather than by unelected, unaccountable Judges who had arrogated to themselves the almost exclusive prerogative to decide how, when, whether, to what extent abortions may be regulated.

What lies before the Supreme Court is the test of weathering the storm of political opinion. The line has been drawn, and Roe v. Wade appears to be on the verge of being overturned. Should this draft opinion become the official holding of the Court, Americans will, once again, have the opportunity to debate and discuss these issues with the American people each deciding, within their respective State, what terms and conditions ought to apply, what restrictions ought to be imposed to protect human life.

This should give us all hope that America is not doomed to decline. All it takes is persistence, even in the face of daunting odds and decades of setbacks by those who love God and love our country. For once, good men and women did not do nothing, and this evil will triumph no more.

I was thinking recently about a monument that was placed on the Mall upon the hill where the Washington Monument stands. A few months ago, people placed white flags, each memorializing those who had died with COVID-19. I believe at the time there were 6 or 700,000 people in America who had died with this illness, and so there were 6 or 700,000 little white flags, each standing only a few inches tall on that hill where the Washington Monument stands. From a distance, it looked like a snowstorm had hit Washington, DC. It hadn't. It was actually quite beautiful.

I started thinking, I started wondering: What if a similar memorial were placed--if only temporarily, like that one was--honoring, memorializing those 63 million babies who had been aborted since Roe v. Wade was decided in 1973, taking away from the American people the ability to make their own laws in their own States pursuant to authority that belongs to the American people and our constitutional system of government--63 million babies. A portion of this came out of my generation. There are an estimated one-fourth of generation X who were never born because they were aborted--63 million. What if we had small red flags, each representing one of those babies? It has occurred to me that there wouldn't be room enough on that hill to accommodate all of those. I seriously wonder whether there would be room enough in the entire Mall, between the Capitol Building to the east and the Lincoln Memorial to the west, to accommodate all of those red flags. And what would that look like? The COVID memorial looked like a snowstorm. This sea of red flags would look like something else.

Now, this moment is not without some sense of loss. When I saw a draft Supreme Court opinion that had been leaked to the news media, I experienced a wave of emotions. As pleased as I was and as encouraged as I am by what appears to be something that will soon become the opinion of the Court, I was also deeply upset that an employee of the Supreme Court of the United States could betray the trust of the Justices.

I recalled from my own time that I spent at the Supreme Court, the time I spent as a law clerk working for Justice Alito, the great lengths to which the Court went to protect the internal deliberations of the Justices. We drafted opinions on separate computers--``separate computers'' meaning we had a computer system that allowed us to handle internal correspondence between the chambers, to transfer draft opinions between the various chambers.

That computer system was completely walled off from the outside world. It was connected only by a local area network, one that was impenetrable from the outside world. If we wanted to do any research, any outside correspondence, anything that would require internet access, we had to go to a separate computer; we couldn't use that one. It was walled off completely, with good reason.

You see, the Court operates in such a way that its ultimate work product in any case will consist of a ruling; and, in fairness to the Justices, you have got to make sure that everything is in order; that the Justices each have decided exactly how they are going to vote, which opinion they are going to join, and what that opinion is going to say before they release their opinions. If those go out too early, then they are not ready. That does a grave injustice to the litigants and to the American people, generally.

That is why the Court goes to great lengths. It is not that they are being secretive about it. The Court is actually quite open and transparent. It is a matter of public record what documents they review in each case. The oral arguments presented to the Court are, likewise, matters of public record. And the documents that they produce that have legal operation are also public documents. It is actually a very open and transparent process.

But during the time period between when argument is heard and an opinion is rendered, the Court needs to be able to deliberate and consider its options confidentially. So that is what this security system does. It is there to make sure that opinions, as they are being drafted and sent back and forth, don't leak out.

In many circumstances, the editing of opinions took place on that same computer system, with drafts going back and forth; redlined, proposed edits between them. In those moments when you did need to print them out, you needed a hard copy, you could do so; but there were conditions attached to them. There was an understanding that they shouldn't leave the building, you can't take them home with you, they shouldn't go outside the Court, they probably shouldn't even go outside of your particular office. And when you are finished with them, you don't just throw it in the wastebasket; you put them in a burn bag.

Each law clerk has next to his or her desk a tall brown paper bag with stripes on it, and at the end of the day someone comes around and collects the contents of those burn bags. And they shred them. My understanding is that they shred them a couple times so that the documents are reduced not just to long, thin ribbons of paper that have been cut apart but they have been cut multiple times so that it is a fine mist of confetti.

It is also my understanding and was at the time that before any of that even left the building, they would take it to an incinerator--that confetti--and they would burn it and they would grind it up into an ashy pulp, perhaps put some water in there, creating a slurry, so that no one could look at what was previously a draft opinion and discern what is going to happen.

You see, lives are at stake. Power is at stake. Sometimes an enormous amount of money is at stake. All these things matter, and the Court wants to make sure that the opinions go out only when they are ready.

Every day was filled with a sense of seriousness and of duty, a seriousness felt by everyone, even and especially when there was disagreement. The ability to deliberate and discuss these complicated legal principles through the process of writing, editing, and sharing opinions with their colleagues is how the Justices are able to distill legal principles and arrive at proper legal conclusions and to do so, moreover, in a way that is respectful of the litigants and of each member of the Court. That is why their work is guarded from public scrutiny at this stage and why a breach of confidentiality such as what we have witnessed this week is so damaging.

And, to be clear, this is unprecedented. I can't think of another instance of this happening over the Court's entire history--certainly in modern history. I can't think of another instance in all of history in which something like this has happened, as the Court and its personnel have had a long history and a proud tradition of taking great care in these matters.

Yet while I am convinced that this leak may have been an attempt to intimidate the Justices and the majority, perhaps an effort to get them to change their position, I am also confident that this attempt will not succeed. And it must not succeed. Chief Justice Roberts said this very thing in his official statement, and he announced that an investigation into the leak will take place. I trust him and the other Justices and the Office of the Marshal at the Supreme Court to steer the Court through this storm and to oversee this investigation.

The overwhelming feelings that I have today really are of joy--joy in the probable outcome of this case--and pride in being a former law clerk to Justice Alito, for whom I clerked twice: once when he was serving on the U.S. Court of Appeals for the Third Circuit and again while he was on the Supreme Court.

The draft opinion overturns Roe v. Wade and Planned Parenthood v. Casey, stating that they ``must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives,'' noting correctly that the Constitution neither explicitly nor implicitly protects a right to abortion.

Every human life, born and unborn, has immeasurable dignity and worth, each unrepeatable and infinitely valuable. The lives of an unborn baby and her mother and her father matter, and the Court overturning prior precedents such as Roe and Casey is not unprecedented--not at all. In fact, some of the Court's most consequential and lauded decisions overturned prior rulings.

Justice Alito compared the damage wrought by Roe to that of the ``separate but equal'' doctrine created in Plessy v. Ferguson. Now, thankfully, the Supreme Court of the United States in Brown v. Board of Education overturned Plessy, putting an end to racially segregated schools, just as it appears now poised to overturn the erroneous decisions in Roe and in Casey.

The opinion is exceptionally well reasoned, thorough, and grounded in the Constitution. It also means that in States across our country, including in my home State of Utah, hundreds of thousands of unborn children--children who could not be protected by State law due to restrictions placed on them by an invented, nonexistent constitutional doctrine created out of whole cloth in Roe and in Casey--now have some chance at being protected, depending, of course, on which decision makers in which States make which decisions regarding the protection of human life.

As Americans, we must not--we can never forget what is at stake. If this majority decision stands, those who recognize the sanctity of human life--like myself and like a majority of Utahns--will have much to celebrate, but we must also recognize that this is not the end of this chapter in American history. The efforts of the last half century have not been done just simply to overturn Roe.

You see, getting to this point, the point that the Court has apparently reached, means that this discussion can finally begin. It is a discussion that has been closed out. Debatable matters have been rendered beyond debate. This, of course, is the vision of a post-Roe America. This is why overturning Roe matters. What happens next with regard to abortion will be determined by the people of the 50 States through their elected leaders, as our constitutional command of federalism demands.

Now, some States, like Utah, already have laws in place to protect the most vulnerable among us the moment that Roe and Casey are overturned. I hope and pray that many innocent lives will be saved, not just in my State but all throughout our country. And I pray for all nine Justices' safety and for our country.

We all know and we have to remember that the laws adopted in one State will be different than the laws adopted in another. Part of living in a pluralistic society, part of living in our constitutional Republic requires us to accept the idea that people have different opinions; they have different views. Regional differences appear from one State to another. I predict that the laws of Utah with regard to the protection of preborn human life may differ considerably from those of Vermont; that the laws of Massachusetts may differ in meaningful ways from those in Mississippi.

Overturning Roe v. Wade and Casey v. Planned Parenthood does not do almost any of the things that are recited in the parade of horribles that those who are condemning this decision already have recited. Among the more frequent and perplexing arguments is that the overturning of Roe v. Wade and Casey v. Planned Parenthood somehow signals or will result in the demise of democracy.

Nothing could be further from the truth. In fact, it is difficult to understand how anyone could even make this argument with a straight face. I don't mean here--not referring to their underlying position; I am referring to the specific argument that this somehow represents a threat to democracy. Quite the opposite is true.

By overturning Roe v. Wade and Casey v. Planned Parenthood, what the Supreme Court will be doing, the very thing it will be allowing is for the democratic process to unfold, for people to make laws as they deem fit in their respective States.

You see, all powers not granted by the Constitution to the Federal Government and not prohibited by the Constitution to the States remain to be made with the States or with the people themselves. That is what this does. So if we want to talk about democratic principles, this will further democratic principles. It will advance republican democracy, not undermine it.

Another argument that has been made that I find equally perplexing is the suggestion that this somehow amounts to zealots on the Supreme Court of the United States dictating to women across America decisions regarding abortion. That is also not true. There is nothing about overturning Roe v. Wade and Casey v. Planned Parenthood that requires that anyone do anything beyond the fact that it is lifting previously recognized but nonexistent impediments to State governments to protect unborn human life.

To those who have raised these concerns, to those who disagree with my views on the sanctity of unborn human life--and I recognize that there are those who do; many of them, in fact--I would direct them to their respective State-elected officials, specifically their State legislatures. That is where this decision is to be made. It is not to be made by the Supreme Court of the United States. They can't criminalize anything. It is not within their power. They are just deciding who gets to decide what. Different States are going to decide this differently, but that is part of the entire constitutional design.

What Justice Alito wrote in this draft opinion is something that I hope will stand. It is absolutely right. It is unassailable from a constitutional standpoint, and it is absolutely essential to restore the American people to that which is rightfully theirs.

I remain deeply troubled by those who appear, whether by leaking this opinion, characterizing it in ways that are unfair, threatening to pack the Supreme Court of the United States, talking about passing legislation that would increase the number of seats on the Supreme Court--these are all efforts designed to degrade, to denigrate and delegitimize the Supreme Court of the United States.

To those who have any inclination to do such a thing, I would say this: Roe v. Wade has stood in place nearly my entire life. Since I was old enough to understand it throughout my entire life, I have regarded it as a really bad decision, a very wrong decision.

Notwithstanding that, I have always regarded and still regard the Supreme Court of the United States, despite its flaws--flaws stemming from the fact that it is run by fallible, mortal human beings who sometimes make mistakes--despite its flaws, it is the greatest tribunal of its kind anywhere in the world. We would not want to substitute it because there is no better court of last resort anywhere in the world, even with its flaws. We must not risk what would come if we continue to delegitimize the Court.

In the meantime, I am grateful that the Court appears finally to be on the verge of correcting this grave injustice, and I look forward to the debates and the discussions that will occur once and for all by the people's elected representatives. These decisions will now be able to be made by the people's elected lawmakers and not by unelected, unaccountable jurists who lack authority to make that decision on behalf of all Americans.

I continue to pray for the Court and for our country. Heaven knows our Republic needs it.

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