If United States Supreme Court quashes landmark rulings establishing the constitutional right to abortion, the legal battle will be moved to state courts
The draft opinions distributed to United States Supreme Court justices are intended to facilitate deliberation and editing before the final version is published. They don’t have the last word, nor are they notified of the public’s response.
But on the afternoon of May 2, 2022, Politico released a bombshell: a leaked version of those opinions, written by Judge Samuel Alito, quashing Roe v. Wade and Planned Parenthood v. Casey — the two rulings that gave constitutional protections to abortion. rights in the US.
While the final text in Dobbs v. Jackson (preceded by the leaked text) may be slightly different, the meaning of the current concept is clear. First, the power of individual states to determine the legal availability of abortions is increasing. Second, the Supreme Court’s barriers to overturning precedents are diminishing.
In American constitutional democracy, many decisions are made by majority, through elections. This applies to routine regulations such as drug laws or speed limits.
But other decisions are beyond the reach of majorities and are protected by individual rights guaranteed by the Constitution. According to Roe v. Wade, the abortion decision fell under the rights category.
But the leaked draft ensures that abortion is no longer a constitutionally guaranteed right to become an act whose legality is determined by the laws of each state.
That means it falls under the majority rule, determined by the citizens of each state through their elected state legislatures. US Supreme Court Justice Samuel Alito says that when the Constitution does not recognize a clear right, the people should elect representatives who share their views rather than appeal to the courts.
Alito’s draft reiterates its central position several times: the law recognized in Roe v. Wade “has no basis in the text of the constitution or in the history of our nation.”
The court ruling Roe v. Wade, Alito writes, “appropriated the power to deal with a matter of profound moral and social importance that leaves the Constitution unequivocally in the hands of the people.” Therefore, “it is time to heed the Constitution and return the issue of abortion to the elected representatives of the people.”
The Roe v. Wade, 1973, and Planned Parenthood v. Casey cases, found in 1992 that the right to abortion resides in a combination of constitutionally recognized protections.
These include the Fourth Amendment’s protection against state interference and the recognition of myriad rights, or “other rights of the people,” of the Ninth Amendment. The most prominent justification in those rulings is the Fourteenth Amendment’s protection against deprivation of “life, liberty, or property without due process.” The Roe v. Wade judgment based the right to abortion on a broader right to privacy, while Planned Parenthood v. Casey emphasized reproductive autonomy and bodily integrity.
According to Alito, the Roe ruling was “remarkably flexible in its handling of the constitutional text. He argued that the right to abortion, which is not in the Constitution, is part of a right to privacy, which is also not mentioned. Their draft concludes that Roe’s “message appeared to be that the right to abortion was somewhere in the Constitution and that specifying the exact location was not paramount.”
The criterion the Supreme Court has used to recognize a right not specifically included in the text of the Constitution is whether it is “deeply rooted in the history and tradition of this nation.” Alito’s project requires historical evidence from political statements, court decisions, or public laws proving the existence of the law.
But Alito’s overview of history claims the opposite: there is no evidence of an established right and there are instead many examples of public restrictions. A 30-page appendix lists all of the state laws prohibiting or regulating abortion passed between 1825 and 1952. It concludes that “until the latter part of the 20th century there was no support in US law for a constitutional right to abortion. Zero. None”.
An important part of the concept sentence focuses on the question of who has the power to determine the prevailing social realities, as well as the protected principles of law.
When a fetus becomes a person — and as such a claimant — is an old dispute at the heart of the abortion debate. This is a crucial aspect of the conflict, as a woman’s right to autonomy and freedom can be limited when other people’s rights are at stake. But it’s not clear who has the authority to make that decision.
The Roe cases – 50 years ago – and Casey – 30 years ago – said the court should establish a national standard to recognize the personality of the fetus. Casey established viability at about 24 weeks, or the point at which the fetus is considered life-sustaining outside the womb, as the point at which a state could recognize the rights of the fetus and therefore restrict abortion.
But Alito argues that this particular rule “is wrong” and that previous statements “provided no substantiated defense of the viability line”.
So Alito puts the decision when a fetus becomes a person wholly in the hands of elected representatives in each state: “In some states, voters may believe that the right to abortion should be even broader than the right recognized by Roe and Casey. Voters in other states may want to impose strict restrictions based on their belief that abortion destroys an ‘unborn human being’.
The Supreme Court does not reject its previous rulings and sticks to precedents unless there is a substantial reason to reject old arguments.
For 30 years, Casey’s decision, who upheld Roe’s, has been considered “precedent upon precedent.” It identified four considerations to legitimately reject the previous decision: the verdict misunderstood the Constitution; it was unfeasible in practice; new realities had arisen; and the citizens had formed their vital decisions on the basis of the phrase, which are known as “trusted interests”.
By nullifying the Roe ruling, the now-leaked design provides a new and weaker standard for undoing precedent. The most important change is what Alito calls ‘the quality of reasoning’. Sentences that “look like legislation”, that provide a flawed history or that create standards that are not justified by the Constitution can be destroyed according to their reasoning. This new criterion concludes in the draft that the precedents “do not compel endless adherence to Roe’s abuse of judicial authority.”
Alito’s draft returns Roe by weakening the precedent law. This will likely open the door to the possible reversal of many other rulings, including same-sex marriage and affirmative action.
We know state lawmakers will come to power if the last sentence resembles the leaked draft. What we don’t know is what each of them will do.
Some analyzes estimate that about 25 states will ban abortion, which would divide the nation equally into abortion-right and anti-abortion states.
This will undoubtedly increase the regional polarization and geographical division of Americans by culture and ideology. It will also likely lead to protracted conflict in states divided by ideology and partisanship, including places like Florida, Pennsylvania and Ohio. This creates the conditions for this issue to dominate state elections and party struggles in the coming years.
It is likely that some states will try to restrict the travel of their own citizens, and states with abortion rights will try to help other citizens move into their territories for an abortion.
It is unclear how the Supreme Court will respond to these laws. But what is clear is that Alito’s law returns power over abortion and potentially other issues to the state level, raising the stakes and also fueling disaffection with democracy in the United States.
This article was published in ‘Het Gesprek’.
Source: La Verdad
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