A leaked draft of an opinion by the US Supreme Court overturning Roe v. Wade, the landmark decision guaranteeing abortion access, has sent shock waves across America.
Chief Justice John Roberts acknowledged Tuesday that the document was authentic, but said “it does not represent a decision by the Court or the final position of any member on the issues in the case.” He said the leak would be investigated.
Justices circulate drafts to their colleagues and the drafts can be amended based on input from other justices. In some cases, justices have switched sides before issuance of the opinion, CNN reported.
The draft opinion said there is no constitutional right to abortion, and it is up to states to decide whether they want to ban or regulate it.
Such a decision would culminate a decadeslong campaign by conservatives who argue that life begins at conception to appoint judges and justices to find that Roe invented a right that did not exist. It would represent a devastating defeat for liberals who sought to guard women’s right to choose the procedure.
Legal experts were expecting that Roe, which has been the law for five decades, could be curtailed or overturned after the court’s rightward shift in recent years.
Here are some key passages from Justice Samuel Alito’s draft majority opinion, which was obtained by Politico:
“We hold that Roe and Casey [a 1992 decision affirming Roe] 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 history and tradition’ and ‘implicit in the concept of ordered liberty.’ The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”
“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. ‘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.’ That is what the Constitution and the rule of law demand.”
“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.”
“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 prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Material from Globe wire services was used in this report.
Martin Finucane can be reached at firstname.lastname@example.org.