Leaked Draft Opinion Shows Supreme Court Has Voted To Overturn Abortion Rights
Written by Peter Boykin on May 3, 2022
Shared By Peter Boykin – American Political Commentator / Citizen Journalist
The disclosure of Alito’s draft majority opinion – a rare breach of Supreme Court secrecy and tradition around its deliberations – comes as all sides in the abortion debate are girding for the ruling.
‘Exceptionally weak’ A George W. Bush appointee who joined the court in 2006, Alito argues that the 1973 abortion rights ruling was an ill-conceived and deeply flawed decision that invented a right mentioned nowhere in the Constitution and unwisely sought to wrench the contentious issue away from the political branches of government.
Alito’s draft ruling would overturn a decision by the New Orleans-based 5th Circuit Court of Appeals that found the Mississippi law ran afoul of Supreme Court precedent by seeking to effectively ban abortions before viability.
At times, Alito’s draft opinion takes an almost mocking tone as it skewers the majority opinion in Roe, written by Justice Harry Blackmun, a Richard Nixon appointee who died in 1999.
Alito’s draft opinion ventures even further into this racially sensitive territory by observing in a footnote that some early proponents of abortion rights also had unsavory views in favor of eugenics.
Much of Alito’s draft is devoted to arguing that the widespread criminalization of abortion during the 19th and early 20th century belies the notion that a right to abortion is implied in the Constitution.
Alito’s draft argues that rights protected by the Constitution but not explicitly mentioned in it – so-called unenumerated rights – must be strongly rooted in U.S. history and tradition.
“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 deepen 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, 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.”
“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.”
“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…
“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.”
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