Stepping away from the controversies of the "leak" of a draft of a Supreme Court opinion as well as the intense partisan attacks against the Court that has included publishing of the Justices' home addresses and death threats, let's look at the Alito draft, with one caveat.
As the Chief Justice noted, what was leaked was a draft and only a draft. Still, we suspect the final ruling will closely resemble this draft since the leak was most likely a last-ditch effort to create a wave of public pressure and chaos that could sway one Justice. (We don't think that will happen.)
So what is in the Alito majority opinion draft?
As a flyover, Alito outlines the finding of the court in the first several pages. The ruling overturns Roe v. Wade and Casey and returns the issue of legislating abortion to the states. Then, Alito proceeds to answer a few fundamental questions that had to be addressed to come to the decision to overturn Roe and Casey:
- Does the Constitution confer a fundamental right to abortion? (answer in Section II)
- Must the Court follow precedent (stare decisis) and uphold a right to abortion? (Section III)
- Will the country not lose its confidence in our laws and the Court if Roe and Casey are overturned? (Section IV)
Here are a few quotes offered as a summary of Alito's ruling (emphasis added)
"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, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted) The right to abortion does not fall within this category." (page 5)
2. "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U.S. at 979 (Scalia, J, concurring in the judgment in part and dissenting in part). That is what tho Constitution and the rule of law demand. (Page 6)
3. Section II -- whether the Constitution "confers a right to obtain an abortion." (page 8)
"First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment's reference to “liberty” protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation's history and tradition and whether it is an essential component of what we have described as “ordered liberty.” Finally, we consider whether a right to obtain an abortion is supported by other precedents."
A. On the 14th amendment: "When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion." (p. 14)
B. Is abortion right rooted in nation's history and tradition? "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article pro- posing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. (p. 15)
"Roe either ignored or misstated this history, and Casey declined to reconsider Roe faulty historical analysis. It is declined to reconsider Roe faulty historical analysis. It is therefore important to set the record straight. 2 We begin with the common law, under which abortion was a crime at least after “quickening’—i.c., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy." (p. 16)
"In summary, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy." (p. 19)
"In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A (listing state statutory provisions in chronological order).* By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening." (p.23)
"The inescapable conclusion is that a right to abortion is not deeply rootedi n 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." (p.24-25)
"There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being." (p. 29)
C. Is abortion right supported by other precedents?
"Ordered liberty sets limits and defines the boundary be- tween competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life." Roe, 410 U.S. at 150; Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be more even more ex- tensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being” Miss. Code Ann. §41-41-191)F). Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated. Nor does the right to obtain an abortion have a sound basis in precedent. (p. 31)
4. Section III -- Stare decisis
"We have long recognized, however, that stare decisis is “not an inexorable command,” Pearson v. Callahan, 555 U.S. 223, 233 (2009) (internal quotation marks and citation omitted), and it “is at its weakest when we interpret the Constitution,” Agostini v. Felton, 521 U.S. 208, 235 (1997). It has been said that it is sometimes more important that an issue “be settled than that it be settled right.” Kimble, 576 U.S, at 455 (emphasis added) (quoting Burnet v. Coronado Oil & Gas Co, 285 U.S. 393, 406 (1982) (Brandeis, J., dissenting). 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,” Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816) (opinion of Story, J)—we place a high value on having the matter “settled right.” In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. See U.S. Const., art. V; Kimble, 576 U. S. at 456. Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions. (p. 35)
"In this case, five factors weigh strongly in favor of over. ruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance." (p. 39)
A. Nature of Court's error.
"Roe was egregiously wrong and deeply damaging. Tor reasons already explained, Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed." (p. 40)
"Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to ad- dress a question of profound moral and social importance that the Constitution unequivocally leaves for the people. 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. Those on the losing side—those who sought to advance the state's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into Life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Casey, 505 U.S, at 995-996 (Scalia, J, concurring in part and dissenting in part). Together, Roe and Casey represent an error that cannot be allowed to stand." (p. 40)
B. Quality of the reasoning.
"Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its deci- sion in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the ‘meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the his- tory of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any party and has never been plausibly explained. Roe's reasoning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion." (p. 41-42)
"The weaknesses in Roe's reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation." (p. 42)
"All in all, Roe's reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism. John Hart Ely famously wrote that Roe was “not constitutional law and gave] almost no sense of an obligation to try to be.” (p. 50)
"Casey, in short, either refused to reaffirm or rejected important aspects of Roe analysis, failed to remedy glaring deficiencies in Roe's reasoning, endorsed what it termed Rod's central holding while suggesting that a majority might not have thought was correct, provided no new sup- port for the abortion right other than Roe's status as precedent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent." (p. 52)
"This Court's experience applying Casey has confirmed Chief Justice Rehnquist's prescient diagnosis that the un- due-burden standard was “not built to last.”" (p. 56)
D. Effects on other areas of law
"Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions." (p. 58)
E. Reliance Interests.
"Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so." (p. 61)
5. Section IV -- Argument that people's faith in rule of law will be lost
"The argument was cast in different terms, but stated simply, it was essentially as follows. The American people's belief in the rule of Law would be shaken if they lost respect. for this Court as an institution that decides important cases based on principle, not “social and political pressures.” (p. 62)
"Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. 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." (p. 64-5)
"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 peo-ple and their elected representatives." (p. 65)
6. Section VI -- Conclusion
"We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibit- ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. ‘The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. (p. 67)
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