By Lawdragon News | May 2, 2022 | Press Releases
A majority of the Supreme Court's conservative justices have cast an initial vote to overturn Roe v. Wade, declaring the 1973 decision that guaranteed abortion rights for the past half century "egregiously wrong" from the outset, Politico reported.
Roe's "reasoning was exceptionally weak, and the decision has had damaging consequences," Justice Alito wrote in the 98-page draft obtained by the news outlet, which cited sources it didn't identify for the document and the identities of the justices supporting Alito's rationale: Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas.
All were appointed by Republican presidents and three - Gorsuch, Kavanaugh and Barrett - by former President Donald Trump. How Chief Justice John Roberts might vote was unclear, according to Politico, which reported the three justices appointed by Democratic presidents were working on one or more dissents.
The Supreme Court didn't immediately respond to a message seeking comment on the authenticity of the draft and the number of justices supporting the majority's conclusion.
Draft opinions are frequently reworded heavily before they are finalized, and justices have sometimes changed their votes. Drafts of opinions, especially one of such weight, have seldom leaked in the court's modern history, Politico and the New York Times reported.
"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," including the due process clause of the Fourteenth Amendment, Alito wrote in the draft of Dobbs v. Jackson published by Politico. That provision was cited by both Roe, which was decided by a 7-2 majority, and Planned Parenthood v. Casey, which affirmed abortion rights in 1992.
Dobbs centers on a Mississippi law known as the Gestational Age Act passed by the Republican-controlled legislature in March 2018 banning abortions after 15 weeks except in medical emergencies. At a November hearing, conservative justices alarmed abortion rights supporters by evincing a willingness to let the bill stand.
"When the Fourteenth Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy," Alito pens in the draft.
The abortion right is "critically different" from other rights the court has held are protected by the Fourteenth Amendment - including sexual relations, contraception and marriage-- because it destroys what Roe and Casey "called 'fetal life' and what the law now before us describes as an 'unborn human being,'" he concludes.