Critics blast leaked SCOTUS ruling as end of abortion rights, but issue would survive in states

The opinion itself notes that it does not spell the end for legal abortion in the U.S. but rather returns authority to Congress and the states to regulate the practice.

Published: May 2, 2022 10:20pm

Updated: May 3, 2022 3:26pm

Pro-abortion politicians and activists on Monday decried the Supreme Court's purported vote to overturn the historic Roe v. Wade abortion ruling after Politico published a leaked draft of an apparent majority opinion by Justice Samuel Alito.

The outlet on Monday published the draft 98-page opinion in the case of Dobbs v. Jackson Women's Health. In the draft, Alito excoriates the Roe decision, which established the constitutional right to abortion, and that of Casey v. Planned Parenthood, which further entrenched the precedent in U.S. law.

The draft does not yet represent the final opinion of the court, but it appears to hold majority support among the justices.

"We hold that Roe and Casey must be overruled," Alito writes. "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." 

The leaked opinion drew sharp criticism from prominent Democratic politicians, who asserted that the ruling threatened to end abortion rights in the U.S. entirely and set the stage for judicial curbs on civil liberties.

The opinion itself, however, quite explicitly notes that it does not spell the end for legal abortion within the United States but rather returns authority to Congress and the states to regulate the practice.

"Abortion presents a profound moral question," the draft states. "The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey regulated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

In making the ruling, Alito cites many critics of the court precedent, most notably late Justice Ruth Bader Ginsburg, an advocate for abortion rights, who described Roe v. Wade as having "halted a political process", "prolonged divisiveness", and "deferred stable settlement of the issue."

Under Alito's opinion, battles over abortion rights will continue in state legislatures. Any state could retain a legal right to abortion or conversely abolish it altogether. Prior to Roe v. Wade, 30 states prohibited abortion in its entirety except to save the life of the mother.

Leading up to the leaked ruling, several states, such as Texas and Oklahoma, implemented sweeping abortion restrictions. Texas included a novel enforcement mechanism allowing any private citizen to bring suit against anyone who performs or aids in an abortion. The provision survived legal scrutiny.

On the opposite side, blue states have moved to expand abortion rights, while pro-abortion leaders such as Sen. Bernie Sanders (I-Vt.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) have pushed Congress to codify the right to an abortion in law in answer to the overturning of the court precedent establishing it.

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