Thoughts on Justice Alito’s Draft Opinion
In the pilfered draft opinion authored by Supreme Court Justice Samuel Alito, he wrote that Roe v. Wade — the court’s 1973 opinion that prohibited the states from banning abortions during the first six months of pregnancy — and Planned Parenthood v. Casey — its 1992 opinion that modified Roe but essentially upheld it — were both egregiously wrong when decided, are egregiously wrong today and so should be overruled.
The practical effect of overruling Roe and Casey will be to return the issue of the lawfulness of abortion to the states, thus liberating all states to legislate as they wish — to ban all abortions or to permit them even AFTER the moment of birth.
Though I agree that Roe and Casey were and are wrong, I do so for reasons differently than those stated in the Alito draft. One of those reasons — that unenumerated rights today must have a long history of recognition — is deeply troubling to those who believe that personal sovereignty trumps governmental power.
Here is the backstory.
The thrust of the Alito draft argues that abortion, which was unlawful in all states when the Constitution was adopted in 1789 and in 28 of the 37 states when the 14th Amendment was ratified in 1868, is not a matter for the federal government. Thus, the opinion holds, abortion is and has been pre-Roe exclusively a state issue over which the federal courts and Congress may not rule upon or regulate.
This opinion unleashes the states to declare that a class of persons is without protection from homicide. The reason the 14th Amendment is implicated is t
Article from LewRockwell
