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Indeed, the opinion’s existence suggests that four other justices have already voted to overturn Roe, reflecting the court’s powerful new conservative majority.
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In other words, they could be as unconstitutional as Roe and Casey in the eyes of Alito – and any other justice that concurs with his opinion.
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He also lists Lawrence v Texas in 2003 (which struck down anti-sodomy laws), United States v Windsor in 2013 (which forced the federal government to treat same-sex marriages just like straight marriages), and Obergefell v Hodges in 2015 (which established the right to gay marriage).Īlito concludes that none of these rights “have any claim to being deeply rooted in history”.
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Then Alito goes further, listing a series of other cases decided partly by the due process clause including Skinner v Oklahoma in 1942 (which held that Americans cannot be sterilised without their consent), Griswold v Connecticut in 1965 (which recognised the right to contraception), and Loving v Virginia in 1967 (which outlawed racial restrictions on marriage). Citing previous rulings that unenumerated rights based on the “due process” clause must be “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty”, he argues that there is “zero” support in American law for a universal right to abortion and that Roe “was on a collision course with the Constitution from the day it was decided”. But when the court revisited abortion rights in 1992, with the case of Planned Parenthood v Casey, it upheld Roe partly by citing a legal principle known as stare decisis (Latin for “stand by decisions”), which asks judges to resist overturning past rulings unless they were seriously wrong.Īlito’s draft opinion in Dobbs v Jackson rubbishes all this. Roe v Wade was controversial at the time, with even some liberal scholars accusing the court of faulty reasoning.
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In the 20th century, the Supreme Court began interpreting this clause as giving Americans “unenumerated” rights not explicitly mentioned in the Constitution, including the right to privacy and to be free from government intrusion into fundamental choices about one’s body – such as abortion. The 14th Amendment, which was only ratified by rebel states under military occupation and the threat of being excluded from Congress, declares that “nor shall any state deprive any person of life, liberty, or property, without due process of law”. When the Supreme Court voted 7-2 in favour of “Jane Roe” in 1973, they did so on the basis of one of the most disputed clauses in the US Constitution, added in the aftermath of the Civil War. All rights reserved.)Ī conservative ruling with radical ambitions And it’s a signal to judges in state and federal courts that if cases come before you using this argument, the Supreme Court might be on your side.” Ībortion-rights demonstrators hold up letters spelling out “My Choice,” Saturday, May 14, 2022, outside the Supreme Court in Washington. “This is a signal to people who are opposed to marriage equality, who are opposed to LGBT+ equality, who are opposed to progress, giving them actual words that they can use in a lawsuit to challenge something. “I’m terrified and people should be terrified,” says Jim Obergefell, whose lawsuit against the state of Ohio led to the Supreme Court ruling that gay marriage was protected by the US Constitution. READ ALSO: Florida pension fund sues Elon Musk over Twitter deal Yet legal scholars and civil rights pioneers say Alito’s arguments could also allow the Supreme Court to strike down major LGBT+ rights such as the right to gay marriage, the right of gay spouses to government benefits and recognition, and even the right to gay sex. Such a ruling would reverse nearly 50 years of precedent and allow Republican state governments to effectively outlaw abortion across a broad swath of the US, curtailing the rights of tens of millions of women. Giving the majority’s opinion on a Mississippi law that had sought to restrict abortion, in a case known as Dobbs v Jackson, he wrote that “Roe was egregiously wrong from the start” and that the right to abortion was not “deeply rooted” in American history. Last month, Justice Alito caused shockwaves when his draft ruling overturning Roe v Wade was leaked to Politico. “Well, my face is red on that one,” Fried recalls now to The Independent. READ ALSO: 'What a player': David Beckham lauds Spurs & Arsenal transfer target after development