Tuesday, May 3, 2022

Initial Thoughts on the Leaked SCOTUS Draft of the Dobbs Abortion Decision

POLITICO, Supreme Court has Voted to Overturn Abortion Rights, Draft Opinion Shows

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.


The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

My initial reactions:

  • In the leaked SCOTUS draft opinion overturning Roe, the Court applies rational basis to all abortion regulations and a “strong presumption” of validity with deference to the legislature. Post-Roe is Post-Lochner.
  • SCOTUS also rejects the equal protection argument saying abortion is not a sex based classification. That’s right—Geduldig for the win.  (In Geduldig, the Supreme Court held that pregnancy classifications are not sex-based classifications)
  • The Court distinguishes other privacy and familial fundamental rights recognized as liberties in one quick sentence saying only, well those don't involve "unborn life."  I'm pretty sure more is needed to show why these rights are not jeopardized under the Court's holding.
  • I think the Court gets the legal history wrong here in this key part to its historical analysis.  Justice Alito writes: “Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right.”  


Abortion, Constitutional, Legal History, Reproductive Rights | Permalink


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