Draftrulingon abortionrights couldsplitnation

• Published date: 09 May 2022
• Publication title: Otago Daily Times (New Zealand)

DRAFT opinions circulated among Supreme Court justices are meant to allow for deliberation and editing before a final version is released. They are not the last word, nor ready for public reaction

But on the evening of May 2, Politico published a bombshell: a leaked draft of an opinion, written by Justice Samuel Alito, that overturns Roe v Wade and Planned Parenthood v Casey — the two rulings that gave constitutional protection to the abortion right.

While the final text of the opinion in the case of Dobbs v Jackson may be somewhat different, the meaning of the current draft is clear. First, the powers of individual states to determine whether abortions are legally available are increasing. Second, the Supreme Court’s barriers for overruling a precedent are decreasing.

State by state voting

Under American constitutional democracy, many decisions are made by majority rule, accomplished through elections. This applies to routine regulations such as drug laws or speed limits.

But other decisions are beyond the reach of majorities and protected by individual rights guaranteed under the Constitution. Under Roe v Wade, the abortion decision fell into the category of rights.

But the leaked draft opinion moves abortion from being a constitutionally guaranteed right to an act whose legality is determined by state laws.

That means it falls under majority rule, determined by the citizens of each state through their elected state legislators.

Alito is saying that when the Constitution does not recognise a clear right, the people must elect representatives who share their view rather than appeal to courts.

The Alito draft repeats its core holding several times: The right recognised in Roe v Wade ‘‘has no basis in the Constitution’s text or in our nation’s history’’.

The court that decided Roe, Alito writes, ‘‘usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves to the people’’. Therefore, ‘‘it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives’’.

Is there a constitutional right?

Roe in 1973 and Casey in 1992 determined the right to an abortion was found in a combination of protections recognised by the Constitution.

These include the Fourth Amendment’s protections against state intrusion, and the Ninth Amendment’s recognition of non-enumerated rights, or ‘‘others retained by the people’’.

The most prominent justification in those rulings is the...