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Leaked draft Supreme Court opinion foretells end of Roe v. Wade


NurPhoto via AFP

John Burger - published on 05/02/22

“The Constitution does not prohibit citizens from prohibiting abortion,” says Alito. “Roe and Casey arrogated that authority. We now overrule those decisions.”

A majority of U.S. Supreme Court justices have reportedly voted for a preliminary draft of a ruling striking down Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, Politico has reported.

“A right to abortion is not deeply rooted in the Nation’s history and traditions,” wrote Justice Samuel J. Alito in a draft majority opinion. According to Politico, which broke the news May 2, Alito was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts reportedly has not decided how to vote on the case, Dobbs v. JacksonWomen’s Health Organization, which was argued in December. 

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito’s alleged draft says. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

A leak about a vote by the Supreme Court is highly unusual. Politico said it received a copy of the draft opinion from a “person familiar with the court’s proceedings … along with other details supporting the authenticity of the document.”

In fact, one of the United States’ leading pro-life organization was skeptical of the report, saying the leak was meant to corrupt the court’s process in coming to a legitimate decision.

“March for Life will not be providing comment on an official decision of #scotus possible leak until a decision is officially announced,” said Jeanne F. Mancini, president of March for Life, on Twitter.

“This leak was meant to corrupt the process,” Mancini tweeted. “It is heartbreaking that some abortion advocates will stoop to any level to intimidate the court no matter what the consequences.”

And Politico cautioned that the justices’ votes might change before the ruling is issued, most likely in June. But news of leak is likely to hearten pro-life advocates around the world, as well as steel the determination of elected representatives in liberal states such as New York and California, as well as the Democrat-controlled Congress and Biden Administration, to codify the decision in Roe, which has been the ruling precedent on abortion for 49 years.

“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” said Democratic Senator Bernie Sanders of Vermont, a former presidential contender, in a statement. “And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”

In 2018, Mississippi passed a law limiting abortions after 15 weeks of pregnancy, except to save the life and preserve the physical health of the mother, or in cases of severe fetal abnormality. The Supreme Court agreed to review the law, considering the question, “Are all pre-viability bans on abortion unconstitutional?”

Under Roe v. Wade and Planned Parenthood v. Casey, “pre-viability” abortion laws have been blocked for decades by federal courts. The decision in Dobbs could allow more extensive protections for the unborn to go into effect without interference by federal courts, said the Susan B. Anthony List, a national organization that supports pro-life women candidates for public office.

SBA List President Marjorie Dannenfelser said in a statement that if the draft opinion leaked by Politico is the final opinion of the court, “we wholeheartedly applaud the decision. The American people have the right to act through their elected officials to debate and enact laws that protect unborn children and honor women. If Roe is indeed overturned, our job will be to build consensus for the strongest protections possible for unborn children and women in every legislature.

“We also recognize the need for the pro-life movement to continue its existing work to support pregnant women and children in need. There are thousands of pro-life pregnancy centers and maternity homes nationwide and an ever-growing pro-life safety net,” Dannenfelser said. “The pro-life movement will continue to grow to meet the needs of these women and their families, walking and planning with them to love and serve both mother and child.”

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