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In the draft, Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called “potential life.” “This was considered social progress – we were changing as a society and different things became important and became part of what one cherished,” said Carol Sanger, an expert in reproductive rights at Columbia Law School. Like abortion, other personal rights including contraception and same-sex marriage may be found by conservative justices to fall outside this framework involving rights “deeply rooted” in American history, scholars noted. Wade abortion-rights decision later this year, in Washington, US, May 3, 2022. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.Īlito reasoned in the draft that substantive due process rights must be “deeply rooted” in US history and tradition and essential to the nation’s “scheme of ordered liberty.” Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons.Ī flag waves outside the US Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only “deepened division” in society.Īccording to Alito, the right to abortion recognized in Roe must be overturned because it is not valid under the Constitution’s 14th Amendment right to due process.Ībortion is among a number of fundamental rights that the court over many decades recognized at least in part as what are called “substantive” due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015. “Roe was egregiously wrong from the start. The Roe decision, one of the court’s most important and contentious rulings of the 20th century, recognized that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy. The court confirmed the authenticity of the leaked draft but called it preliminary. The court’s 6-3 conservative majority, including Alito, has become increasingly assertive on a range of issues. “The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognized by the Supreme Court,” Sepper said.
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