Leaked Draft Overturns Roe v. Wade

Steven D. Schwinn, University of Illinois Chicago School of Law

Here's the draft obtained by Politico, apparently authored and circulated by Justice Alito. Here's the upshot:

We hold that Roe and Casey 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. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of "liberty." Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."

Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. 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 representatives. . . . .

Justice Alito wrote that the ruling doesn't call into question other recognized fundamental rights in cases cited in Roe and Casey. But the ruling could lay the groundwork for overturning more recent cases like Lawrence v. Texas and Obergefell--which, in the language of the opinion, recognize the "right to engage in private, consensual sexual acts" and the "right to marry a person of the same sex," respectively--if the Court ever reassess whether those rights are "deeply rooted" and "implicit in the concept of ordered liberty."

The opinion engages with some of the historical arguments in favor of Roe. But it doesn't engage with this one, by David Gans at the Constitutional Accountability Center. Check it out.