It is a true statement that nowhere in the U.S. Constitution is there a right to kill unborn babies. The concept isn’t even implied.
Seven justices on the U.S. Supreme Court in 1973 came up with a “right of privacy” in the Due Process clause — previously unknown in the Constitution’s existence — for women to kill their babies for any reason in the first trimester, as long as the baby can’t live outside the womb. The government couldn’t bar abortion during the first trimester. Regulating began during the rest of the pregnancy.
Politico broke a story Monday that revealed a leaked draft of a high court opinion in which five justices voted to overturn Roe v. Wade and Planned Parenthood v. Casey (1992) in the Dobbs v. Jackson Women’s Health Organization case. In Casey, the court upheld Roe but allowed regulations during the first trimester and added an “undue burden” standard of review rather than scrict scrutiny. A state’s abortion restriction would be unconstitutional if the purpose of the restriction is to place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
In the draft opinion, Justice Samuel Alito wrote:
“We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
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He notes that Americans hold “sharply conflicting views” on the subject. “Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”
The draft is unsigned, and the draft opinion itself doesn’t overturn Roe.
It’s unknown whether any of the other justices intend to submit concurring or dissenting opinions. If the court overturns Roe and Casey, states can decide whether to legalize abortion or ban it.
The question now is who leaked the opinion, and whether the person will face legal consequences. The obvious purpose behind the leak is to create a backlash and to pressure one of the conservative justices to cave.