Abortion rights activists outside the US Supreme Court, Washington, D.C., May 21, 2019 (Kevin Lamarque/Reuters)

EA on BBC: The Supreme Court’s Threat to A Woman’s Right to Choose

In a leaked draft majority opinion, arch-conservative Supreme Court Justice Samuel Alito is overturning the 1973 precedent of Roe v. Wade, handing the matter to State legislatures to decide on bans or sharp restrictions.

Sources said Alito was joined in a December conference by four conservative colleagues — Clarence Thomas and Donald Trump’s appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The Court’s three moderates — Sonia Sotamayor, Elena Kagan, and Stephen Breyer — dissented. The position of Chief Justice John Roberts is still unknown.

Alito then drafted the opinion in February. The Court is scheduled to confirm the ruling in July.

Read the Draft Opinion

The Court is hearing a challenge to a Mississippi law which bars abortion after 15 weeks of pregnancy. The measure defies Roe v. Wade and a 1992 decision, Planned Parenthood v. Casey, that maintain the right to abortion.

Some legal observers expected the court to maintain the standard of fetal viability while accepting a limit of 15 weeks. However, Alito shredded that expectation with a rare reversal of precedent, assailing his predecessors as “egregiously wrong” on Roe v. Wade.

With the legal pose that “it is time to heed the Constitution, he turned abortion into a political matter with a “return [of] the issue of abortion to the people’s elected representatives”.

About half of the 50 US states — all with Republican-controlled legislatures — have moved to ban or sharply restrict abortions, with 15 following Texas’s limit of about six weeks. There are current or proposed “trigger laws”, banning abortion as soon as Roe v. Wade is overturned, in 18 states. Other legislatures have passed measures for long prison sentences for doctors and nurses who carry out the procedure.

However, with Roe v. Wade standing as precedent, federal judges have checked some of the restrictions.

See also Federal Judge Blocks Kentucky Restrictions on Abortion

Much of Alito’s opinion is invective, describing doctors and nurses as “abortionists”. He blamed the Court’s precedents for the politics around the issue — “Roe and Casey have enflamed debate and deepened division” — and proclaimed that the Justices’ “survey of history ranged from the constitutionally irrelevant to the plainly incorrect”.

He also threw out the standard set by Roe of “fetal viability” to establish abortion guidelines, claiming that it “makes no sense”. He replaced it with the unsupported claim that some proponents of the right to choose were motivated by eugenics: “[They] have been motivated by a desire to suppress the size of the African American population.”

The core of Alito’s legal argument is that a woman’s right to choose is not specified in the Constitution: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” That assertion threatens to undo not only abortion rights but also civil rights in other areas of American life.

For decades, US courts have held that there are “unenumerated rights”, such as the rights of minorities to equal treatment, the right to contraception, and the right to same-sex marriages. They have ruled that these are part of the 14th Amendment’s guarantees of personal rights and the right to privacy.

Alito brushed aside the cultural establishment of rights in almost 50 years after Roe, a point made by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter in the 1992 Casey ruling:

An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.

Anticipating the concern over his opinion, Alito — and possibly his conservative colleague — asserts, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”