The enormous consequences of overruling Roe v. calf

TThe shocking leak of a draft Supreme Court advisory confirms what everyone has been expecting: Roe v. calf is about to be overcome. The Court prides itself on its extreme secrecy, and even disclosures of internal deliberations after the release of Opinions are relatively rare. It is unprecedented for someone in court to give the press a copy of a draft opinion.

Of course, it is possible that the outcome may change by the time the court delivers its verdict. In fact, in 1992, five judges initially agreed Planned Parenthood vs. Casey to overrule Roe v. calf, only for Judge Anthony Kennedy to change his mind and join a majority to affirm abortion rights. However, given the composition of the current court, this seems highly unlikely roe will survive. The December 1 hearing left no doubt that there are five conservative justices willing to overrule the 49-year-old precedent: Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett.

Now we need to start thinking about a world without a constitutional right to abortion and therefore a return to the past roe when abortion was illegal in most states. The effect of overruling roe, according to Judge Alito’s draft opinion, should leave the issue of abortion to the political process. For now, this means each state can decide whether to allow abortions or ban some or all abortions. More than half of the states are expected to ban all or virtually all abortions.

Women in these states who want abortions and have money travel to places where abortion is legal. But poor women and teenagers will once again face the gruesome choice between an unsafe abortion or an unwanted child.

The implications for the law of nullification roe will be enormous. Judge Alito’s draft Opinion for the Court says so roe was “enormously wrong” because it protects a right that was not in the text of the Constitution, was not protected by the original meaning of the Constitution, and was not traditionally protected as a constitutional right.

But this line of reasoning has also wrongly ruled countless other Supreme Court decisions protecting fundamental aspects of privacy and autonomy. For example, it wasn’t until 1965, in Griswold vs. Connecticutthat the Court ruled that the Constitution protects the right to purchase and use contraceptives. Nor is it a right that is written in the text of the Constitution, or contemplated when the document was ratified, or that was historically protected. I expect that afterwards roe is overruled, some states will quickly pass laws banning types of birth control that work after conception, like the IUD and the morning-after pill. Judge Alito argued that these laws would also be constitutional.

Or think about the right to marry. Not until 1967, in Loves vs. Virginiaand 2015, in Obergefell v. Hodgesthat the Court protected a constitutional right to marry by striking down laws prohibiting interracial marriage in the first case and laws prohibiting same-sex marriage in the second. But this right cannot be found in the text, original meaning or tradition.

Likewise, the Court has protected the right to procreation, custody of one’s children, the right to keep families together, the right of parents to control the upbringing of their children, the right of competent adults to refuse medical care, and the right to Agree to engage in same-sex sexual activity under the freedom of due process clause. These rights, too, cannot be justified by the Court’s approach in Judge Alito’s draft Opinion.

Put simply, if the Court pulls the strings on abortion rights, it threatens to unravel a web of rights that has been protected for decades. These are fundamental aspects of freedom that enjoy constitutional protection.

The Court’s Decision roe will not end the debate nor the intense political controversy over abortion. On the contrary, it will exacerbate it as it becomes the dominant issue in countless congressional, state legislature, city council and judicial elections.

Throughout American history, the Court has celebrated the importance of following precedent as it provides predictability and stability in the law. Judge Alito’s opinion indicates that five judges are about to overrule each other roe because they don’t agree. The implications for the future of constitutional law and for the legitimacy of the Court are potentially enormous.

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