THe shocking leak of a Supreme Court draft opinion confirms everything everyone had hoped for: Roe V. Wade It is likely to be overruled. Because the Court is known for its strict secrecy, even revealing details of internal discussions after the publication of opinions is rare. A draft opinion is not something that the Court would ever give to the press.
The result of the Court’s decision could be changed at any time. In actuality, the Court had originally voted in five justices in 1992. Casey vs. Planned Parenthood To overrule Roe V. WadeOnly Justice Anthony Kennedy would change his mind, joining a majority that would reaffirm abortion rights. It seems unlikely, however, given the Court’s current composition. Roe They will be able to survive. Oral arguments were held on December 1, and it was clear that five conservative justices are ready to overrule the precedent of 49 years: Justices Thomas (Alito), Gorsuch, Kavanaugh, Barrett.
We need to start thinking about a world where there is no constitutional right to abort and a return back to what was before. Roe When abortion was legal in all 50 states. The impact of overruling Roe, as Justice Alito’s draft opinion says, is to leave the issue of abortion to the political process. This will let each state decide whether it allows abortions, or prohibits them. More than half of all states are expected to ban abortions.
These women will fly to legal abortion places if they have the money and are in these states. Poor women and teens will again have to choose between unsafe abortions or unwanted children.
What does this mean for the law of overruling? Roe They will be immense. Justice Alito’s draft opinion for the Court says that Roe was “egregiously wrong” because it protects a right that was not included in the text of the Constitution, was not protected by the original meaning of the Constitution, and was not traditionally safeguarded as a constitutional right.
However, this reasoning led to many other Supreme Court rulings that wrongly ruled in favor of basic autonomy and privacy. It wasn’t until 1965 that it became a law. Griswold v. ConnecticutAccording to the Court, the Constitution provides a protection for the right to use and purchase contraceptives. This right is also not in the Constitution, or was it contemplated at the time the Constitution was ratified, or was historical protected. It is likely that it will be after. Roe Upon its defeat, some states will pass legislation quickly banning contraceptives which act immediately after conception. This includes the IUD and morning-after pill. Under Justice Alito’s reasoning, those laws too would be constitutional.
You might also consider marrying. It wasn’t until 1967, in Loving v. VirginiaIn 2015 and? Obergefell v. HodgesCourt held that the Constitution protected the right to marry, striking down interracial laws in one case, and same-sex laws in another. However, this right can’t be found in either the original meaning or the traditions of the text.
Likewise, the Court has protected the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right of competent adults to refuse medical care, and the right of consenting adults to engage in same-sex sexual activity under the liberty of the due process clause. These rights, too, cannot be justified under the Court’s approach in Justice Alito’s draft opinion.
Simply put, the Court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades. These fundamental freedoms are worthy of constitutional protection.
The Court’s overruling Roe It will not end the political debate and intense controversy about abortion. It is going to intensify it, in fact, as abortion will be the predominant issue in numerous elections for Congress and state legislatures.
American history has been marked by the Court’s praise for precedent, which provides stability and predictability in law. From Justice Alito’s opinion it is clear that five justices are about to overrule Roe Because they don’t agree with it. The implications for the future of constitutional law, and for the Court’s legitimacy, are potentially enormous.
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