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| Michael Caterina/South Bend Tribune via AP |
A crucial part of Justice Samuel A. Alito Jr.’s draft majority opinion dismantling the Supreme Court’s 1973 Roe decision came at the back end, with a 31-page appendix detailing myriad state abortion bans in effect at the time the court ruled, including some that had been on the books since the early 19th century.
The point was that abortion was widely illegal in the 1860s when the 14th Amendment was adopted. Therefore, Justice Alito said, it couldn’t have been one of the unenumerated but implicit rights that the 1973 Supreme Court insisted were lurking in the penumbras of the Constitution.
That means Roe v. Wade was “wrong from the start,” he wrote, and must be erased from the court’s legal memory despite serving as precedent for nearly the past 50 years.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one which the defenders of Roe and Casey now chiefly rely upon — the Due Process Clause of the Fourteenth Amendment,” he wrote.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Alito said in the draft, dated from February, which was leaked to Politico.
The opinion has detonated at the heart of American politics.
Pro-life advocates marvel that decades of strategizing, voting and praying may have finally delivered victory. --->READ MORE HERE
Are we really shocked that the draft opinion in the most significant Supreme Court case in 50 years was leaked? We certainly should be, as the leak is, to quote legal scholar Carter Snead, a “shocking act of betrayal and a breathtaking breach of ethics.”
To those who don’t follow Supreme Court politicking closely, the leak matters because it is an act of corruption of the highest order, one that appears to have been done to exert political pressure on the justices to change their opinions.
The justices represent the one branch of government that was designed to be independent of political pressure. The leaker strikes at the heart of the American system of government and its design.
Yet, the leak feels more like the death rattle of a movement that has fought to keep decisions about how to regulate abortion out of the American people's hands for generations.
Alito demonstrates legal courage
The leak also is a misfire. If anything, the leak has given the American people a preview of the kind of constitutionalism that voters crave and a glimpse of the legal courage we have yearned for.
The draft opinion’s greatest gift is its clarity. “We hold that Roe and Casey must be overruled,” writes Justice Samuel Alito. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” --->READ MORE HEREFollow links below ro related stories:
Alito’s Opinion Is Brilliant and Shrewd
Alito becomes lightning rod in abortion war
Samuel Alito: the abrasive justice taking abortion rights back to the 17th century
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