Supreme Court Set To Overturn Roe v Wade, Leaked Draft Opinion Shows
A leaked draft of a US Supreme Court decision reveals that themajority of the court has decided tooverturn Roe v. Wade by a vote of 5-4, according to Politico, which calls it a "full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right."
"Roe was egregiously wrong from the start," wrote Justice Samuel Alito in the draft which was circulated inside the court before someone leaked it to the news outlet. "We hold that Roe and Casey must be overruled."
“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.” https://t.co/2os0uJWyUr
Politico highlighted these 10 passages from the draft opinion:
“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....”
“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 deepened 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 [Roe v. Wade], 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.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in 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.”
“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.”
“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ 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,’ we place a high value on having the matter ‘settled right.’”
“On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
”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....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.’”
“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.”
Sorry one last thing for those wondering about Court procedure: After oral argument the Justices take a tentative vote. This would have happened in December. The senior most justice in the majority gets to assign the opinion. That might have been Roberts, but doubtful since...
So there is the possibility an opinion can flip after oral argument and the tentative vote, so it's theoretically powerful the Alito opinion won't be the vote of the Court. But it would require a Justice BESIDES Chief Justice Roberts to flip.
The magnitude of this report is so serious that Politico included this editor's note vouching for the authenticity of the draft decision.
The leak has completely wiped the headlines and Twitter is exploding with hot takes.
Leaking a draft SCOTUS ruling is worse than January 6th. The Court was the one institution where conservatives and liberals lived in peace and trust. You disagreed but the trust was sacred. This completely destroys the Court’s inner workings. Totally in shock right now.
This is why they leaked:
"Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading...The court’s holding will not be final until it is published, likely in the next two months." (Politico) https://t.co/9k0JfLfYZd