An unprecedented leak from the US Supreme Court suggests Roe v. Wade will be struck down imminently. An initial draft majority opinion obtained by POLITICO, if upheld, would likely trigger abortion bans across half of America.
The draft concerns striking down two rulings: Roe v. Wade and Planned Parenthood v. Casey. Roe was handed down in 1973, and established federal constitutional protection of abortion rights. Casey, a 1992 decision, was a major case that maintained the right.
Following the standard practice of the Supreme Court, one justice is assigned to write a majority opinion draft after their oral argument. The draft is circulated among the rest of the justices, who are free to change their vote between the initial poll and the final ruling. So, though the Court’s decision won’t be final until it’s officially published – likely in the next two months – the outcome is unlikely to change.
The Supreme Court has declined to confirm the draft leak, but it’s the first time in modern history a draft decision has been publicly disclosed while the case is still pending.
The draft opinion was written by Justice Samuel Alito, a Republican appointee, and it’s indicative of the recent rightward swing of the Court. When Roe was initially decided, almost 50 years ago, the Court split 7-2. Five Republican appointees joined two Democratic justices to approve abortion rights.
Now, abortion has been transformed by right-wing Christians into a hot button issue at the vanguard of Republican politics. “Roe was egregiously wrong from the start,” writes Alito, “Its reasoning was exceptionally weak, and the decision has had damaging consequences… It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Alito’s Draft Majority Opinion
Alito takes issue with the original Roe decision’s affirming of abortion as a constitutional right. Speaking to The Guardian, legal scholar Melissa Murray says ‘rights’ in the US can come from two places – the text of the US Constitution, and as a result of substantive due process.
For example, the right to bear arms is spelled out in the Constitution. Broader rights relating to marriage and parenting can be established by substantive due process, for example the right to same-sex conduct in Lawrence v. Texas and the right to same-sex marriage in Obergefell v. Hodges.
Rights that aren’t explicitly spelled out in the Constitution must have strong foundations in America’s ‘history and traditions.’ Alito writes that Roe did not specify where in the Constitution its basis could be found, and that “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
Implications for Other Rights
One of the most concerning implications of the Court’s decision is the destabilising effect striking down Roe will have on a myriad of other rights. Rights concerning same-sex marriage and sex, birth control, IVF, and more, will have a weakened legal basis if Roe is overturned. This is because these rights are rooted in the same implied constitutional right to privacy as Roe.
It’s not a stretch to say that same-sex marriage is threatened by this development – conservative legal activists from the anti-abortion group Texas Right to Life argued the Court “[shouldn’t] hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”
This brief was written to the Supreme Court during the initial hearing of Dobbs v. Jackson Women’s Health Organization. The Mississippi case, which would ban most abortions after 15 weeks, is just one of dozens of bans that are poised to be activated once Roe is overturned.
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