Appeal to the “court” of Public Opinion Denied
The Case before the court was DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. By a 6 to 3 vote the court overturned the Fifth Circuit and allowed a Mississippi law to stand. By a 5 to 4 vote the court overturned ROE and CASEY and further declared the Constitution does not recognize a Right to abortion.
BREAKING: SCOTUS overturns Roe in Dobbs — on Alito opinion, 6-3
ED MORRISSEY Jun 24, 2022 10:31 AM ET HotAir
The reign of Roe has come to an end, and with it the reign of Doe and Casey as well. The Supreme Court overturned Roe and all its successor precedents in a blockbuster ruling over an abortion-restricting law in Mississippi. The leaked draft opinion from Justice Samuel Alito turned out to be the controlling opinion, and all of the intimidation tactics didn’t apparently make any difference at all.
Biggest surprise here? Chief Justice John Roberts eventually came along for the ride, but we’ll get to that in a moment. Those who read the Alito draft will already be familiar with his argument:
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.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
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 elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
Alito includes a long list of state-level prohibitions against abortion in Appendix A to emphasize how much Roe fell outside the “nation’s history and tradition.” The latest of those passed in 1952, only twenty-one years before Roe. The “history and tradition” argument worked the other way, which the Roe court ignored entirely in crafting a ‘right’ from its emanations and penumbras of the Fourth Amendment.
Important to note that the Chief Justice did not concur on the reversal of ROE and dependent precedents nor with the declaration that abortion was not a right and not protected under the Constitution as such.