Draft ruling shows Supreme Court overturning Roe v. Wade


The Supreme Court is poised to overturn the landmark 1973 decision in Roe v. Wade that protects the federal right to abortion, according to a draft majority opinion published Monday evening by Politico.

The 67-page document, described as an initial draft majority opinion, would effectively eliminate abortion protections at the federal level and hand authority over abortion access to the states. Penned by Justice Samuel Alito, one of the court’s staunchest conservatives, the opinion concludes by declaring that Roe and the court’s 1992 decision in Planned Parenthood v. Casey have no grounding in the Constitution.

“We now overrule those decisions and return that authority to the people and their elected representatives,” the opinion states. Under those cases, states were prohibited from banning abortion prior to fetal viability, around 23 weeks.

A spokesperson for the Supreme Court had no comment in response to questions. 

The justices’ votes are often fluid up to the point of an opinion’s publication, and the draft may have changed since February, when it was purportedly written. A published opinion from the court is expected sometime within the next two months.

The leak of the draft opinion marks the most stunning breach in recent memory of the secrecy that typically shrouds the Supreme Court and its inner-workings, and it is likely to further tarnish an institution whose perception among the public has recently fallen to historic lows.

If the court indeed follows the draft’s contours and strikes down Roe in coming months, it would send political shockwaves through the country ahead of the November midterm elections. According to a December poll by Harvard CAPS-Harris, a majority — 54 percent — of Americans said they oppose overturning Roe v. Wade.

Politico, in an editor’s note, said it undertook an extensive review and is “confident of the authenticity of the draft.”

Alito, in the draft opinion, employed language that mirrored remarks he made during a December oral argument in which he said he viewed Roe as “egregiously wrong.”

The issue before the court was a Mississippi law that bans virtually all abortions after 15 weeks of pregnancy. Deep-red Mississippi, in court papers, explicitly asked the justices to use the case as a vehicle to overturn the landmark 1973 decision that first recognized a constitutional right to abortion existing in the 14th Amendment’s due process clause.

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito’s majority opinion draft states. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.”

Politico, citing an unnamed source, said that majority also included fellow conservative Justice Clarence Thomas as well as former President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Many Republican officials urged the court to adopt this approach, including a dozen GOP governors who urged the justices in a friend-of-the-court brief to use the Mississippi case to eliminate federal abortion protections and let states regulate the procedure. The 2018 Mississippi law at issue in the case, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years. 

Justice Sonia Sotomayor, the court’s most outspoken liberal, issued a dire warning to her fellow justices during the December oral argument about the repercussions of turning over the issue of abortion to the states.

She suggested such a move would be seen as highly politicized and merely a reflection of the court’s new lopsided 6-3 conservative majority resulting from the seating of Trump’s three nominees.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked Mississippi’s solicitor general. “I don’t see how it is possible.

Here are 10 important passages in the draft opinion:

“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....”

“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.”

“In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … [I]t represented the ‘exercise of raw judicial power’… and it sparked a national controversy that has embittered our political culture for a half-century.”

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

“In some States, voters may believe that the abortion right should be more even more [sic] extensive than the right Casey and Roe recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ ... Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’”

“On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

”Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. … The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. … Together, Roe and Casey represent an error that cannot be allowed to stand.”

“Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century....This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’”

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

Post a Comment

Previous Post Next Post