Associate Justice Samuel Alito.Photo: Erin Schaff-Pool/Getty
JusticeSamuel Alitohas become the central figure in the Supreme Court’s still-pending decision on nationwide abortion access following the leak of a98-page draft opinionhe authored earlier this year calling for the overturning of two landmark cases.
On Monday night,Politicoreleased the draft of a majority opinion Alito circulated in February — with four other Republican-appointed justices reportedly joining him in favor of striking downRoe v. WadeandPlanned Parenthood v. Casey.
While a final decision isn’t expected until this summer (and the justices' votes could still change), such a ruling would effectively end the constitutional right to an abortion and place the regulations up to individual states.
The release of the draft opinion is extraordinary for a number of reasons, including the leak itself, which Chief JusticeJohn Robertscalled “a singular and egregious breach” in a statement issued Tuesday — confirming the opinion was authentic but noting it was still only a draft.
But the brighter spotlight is on the text itself, which is labeled as a first draft and the “Opinion of the Court” and states, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
If the majority does decide to strike downRoeandCasey, abortion would be on track to become illegal inroughly half of all U.S. states, experts say.
For now, the draft opinion is stirring intense debate — and drawing attention to the author himself.
All About Alito
As an appellate judge, he dissented inCasey— the ruling he now appears likely to finally reverse — though the majority at that time had struck down a law forcing women to alert their husbands prior to getting an abortion.
Past Rulings and Views
Alito said that the requirement infringed upon the religious freedom of the owners of the company.
“The COVID crisis,” he added, “has served as sort of a constitutional stress test.”
Elsewhere in that same speech, Alito raised eyebrowswhen discussing gay marriage, arguing that it is “now it is considered bigotry [to] say that marriage is the union between one man and one woman.”
Alito has also issued rulings in the past related to LGBTQ people, as when the court denied taking up a case of a nonprofit ministry organization that had blocked an applicant for an attorney position because he was in a same-sex relationship.
In that decision, Alito found that religious employers should be allowed to not hire those with different beliefs and that forcing them to do so would “undermine” their “autonomy” as an organization,Forbesreports.
What Has He Said About Abortion?
Alito’s legal philosophy on the lack of constitutionality guaranteeing abortion access appears to be long-held.
In a 1985 application for a promotion at the Justice Department, according toThe New York Times, Alito wrote that he was “proud” of contributing to cases that argued “the Constitution does not protect a right to an abortion.”
During his 2005 confirmation hearings for the Supreme Court, Alito offered another window into his thoughts aboutRoe,sayingthen: “[It] is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions … and the Supreme Court has reaffirmed the decision … the more often a decision is reaffirmed, the more people tend to rely on it.”
What Does His Draft Opinion Say?
Alito wrote in February, according to the leaked document, that the right to have an abortion would remain up to each state, thatRoe"was egregiously wrong from the start" and that it “must be overruled.”
“We do not pretend to know how our political system or society will respond to today’s decision overrulingRoeandCasey,” Alito wrote. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
His draft opinion continued: “We therefore hold that the Constitution does not confer a right to abortion.Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
Roughly half of all U.S. states have already created laws that would ban abortion ifRoeandCaseyare overturned and the opinion comes at a time whenabortion rights are under assaultacross the country (in 2021, a record 106 restrictions on abortions became law in the U.S.)
Abortion access is one of the most debated social issues, even as pollingrepeatedly showsa majority of Americans support it in most cases.
Some legal experts warn that Alito’s language in his draft opinion on abortion signals a potential impact on other rights, too.
That language raises questions about how Alito (and other conservative justices) might push to broadly reshape the cultural landscape or vote on cases concerningother rights"not deeply rooted" in American tradition or mentioned in the nearly 300-year-old Constitution — like interracial or gay marriage, for instance.
Speaking to reporters on Tuesday, PresidentJoe Bidenwondered aloud whether Alito’s rationale for striking downRoecould impact theGriswold v. Connecticutruling of 1965, which protects the privacy of married couples to buy and use contraceptives without government restriction.
“If the rationale of the decision as released were to be sustained, a whole range of rights are in question — a whole range of rights,” Biden said. “And the idea we’re letting the states make those decisions, localities make those decisions would be a fundamental shift in what we’ve done.”
source: people.com
