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#Analize / Mălina Mîndruțescu

Abortion may no longer be a constitutional right in America

On Monday night, Politico leaked a draft stating that the United States Supreme Court has privately decided to strike down the landmark Roe v. Wade ruling, which guaranteed the right to abortion for almost half a century in the world’s “greatest” democracy.

In an initial draft published by Politico on Monday, the document shows that the United States Supreme Court seems to have overturned the landmark Roe v. Wade decision from 1972, which created the foundation for abortion rights in the country.

In a majority decision written by Conservative Justice Samuel Alito, with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voting to support Alito’s opinion and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan reported to have been working on the dissent, the Conservative side already has enough votes to overturn the ruling (5-4 majority), regardless of which side Chief Justice John Roberts will decide to go.

“We hold that Roe v Wade must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision […] 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 the Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’”, reads the draft.

It has been unprecedented in modern times that draft documents are leaked before a decision of the court is announced. “In the court’s modern history, early drafts of opinions have virtually never leaked before a decision is announced. Any decision along the lines of the draft would be a seismic change in American law and politics”, reports the New York Times in Tuesday’s daily Briefing.

abortion protest

Photo source: Getty Images


Another excerpt leaked from the draft states that “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 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”.

Journalists and experts who have covered the US Supreme Court for a long time are saying that the draft is very likely to be real, given the wording, style and overall outlook of the draft.

Adam Liptak, a New York Times journalist covering the Supreme Court, stated that “the draft posted by Politico is consistent with the Supreme Court’s published opinions in ways large and small, including structure, length, typography and how legal citations are rendered. Its assertive and sometimes slashing tone reads very much like other major opinions from Justice Alito”.

In his real-time analysis following the publication of the opinion, Liptak said that “the leaked draft, if it represents the court’s last word on Roe, is a jurisprudential earthquake. And the leak itself is a stunning breach of the court’s usually impenetrable confidentiality”.

However, the opinion, which was drafted in February, might not be the reality of how things stand now, three months forward. Supreme Court Chief Justice John Roberts has not yet stated his intent.

Draft opinions, however, might be just that, drafts. In recent years, it has been the case that justices have shifted their views as the opinion-drafting process was unfolding behind the closed doors of court chambers.

In 2012, Roberts shocked everyone when he changed his position and decided to vote to approve the provision of the Affordable Care Act, also known as Obamacare, becoming the deciding swing vote that made the passage of the law possible.

However, this unprecedented leak short-circuits all that.

Since the leak of the Supreme Court draft, protests have swarmed the premises of the highest court in the land, breaking the country into two and creating further resentment between left and right.

conservative supreme justice

Photo source: Pool


Especially given the rarity of a breach within the Supreme Court, various scenarios have come to the surface regarding who might have leaked the draft. One such scenario argues that it might have been a clerk of a liberal justice, in an attempt to put pressure on Conservative justices and change their minds, as a result of the resentment, pressure and consternation that would arise from the publication of this draft.

“Another theory was that one of the conservatives orchestrated putting it out, seeking to soften the impact of the decision by getting Americans used to the idea before it happened — and clouding the importance by raising the distraction of a debate over the propriety of the leak”, reports the same NYT report.

However, Richard L. Hasen, a law professor at the University of California, Irvine, said in an interview to the Times that, “I would be wary of jumping to a conclusion that the leaker is necessarily someone who opposes overturning Roe v. Wade. This kind of leak could in fact help the likely future majority overturning Roe if it deflects the conversation to the question of Supreme Court secrecy and the danger of leaks to the legitimacy of the process.

That’s better than a conversation about the potential illegitimacy of overturning longstanding precedent allowing reproductive choice. It also could be intended to soften the blow by signaling to everyone the earthquake to come”.

As things stand now, if this draft became the law of the land, because of statutes already on the books and “trigger” laws designed for such an occasion, abortion would be illegal in 22 states in an instant. “The legality of the procedure would become a vicious political battleground in the midst of an election year”, continues a BBC analysis.

For more True Story analyses on the United States Supreme Court and abortion law, please click here and here.


Photo source: Getty Images

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