A new report in the New York Times confirms that the four other conservative justices on the Supreme Court quickly affirmed the decision Justice Samuel Alito wrote confirming there is no right to abortion in the Constitution.
Last year, the Supreme Court overturned Roe v. Wade, with a 6-3 majority ruling in the Dobbs case that “The Constitution does not confer a right to abortion.”
“We hold that Roe and Casey must be overruled. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” Justice Samuel Alito wrote for the majority.
The new report from the Times tries to cast suspicion and doubt on the ruling by making it appear that other members of the court didn’t even bother to read the opinion or had their minds made up on the decision without appropriate thought and deliberation.
The conservative supreme court justice Neil Gorsuch took just 10 minutes to approve without changes a 98-page draft of the opinion that would remove the federal right to abortion that had been guaranteed for nearly 50 years, the New York Times reported.
Citing two people who saw communications between the justices, the Times said: “After a justice shares an opinion inside the court, other members scrutinise it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
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“But this time, despite the document’s length, Justice Neil M Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes.”
Three other conservatives – Clarence Thomas, Amy Coney Barrett and Brett Kavanaugh – signed on in the following days.
“None requested a single alteration,” the Times said. “The responses looked like a display of conservative force and discipline.”
But the result isn’t surprising and doesn’t reflect a lack of thought or care.
First, abortion is not a new issue. The Roe decision was handed down in 1973 and has been one of the most controversial Supreme Court decisions in American history. The justices have had decades to grapple with Roe and its wrongness. Justices looked at the case in law school and through their legal and judicial careers and were asked questions about the case during their confirmation hearings. The subject of abortion is almost 50 years old.
Secondly, members of the Supreme Court hear the Dobbs case and asked questions of attorneys on both sides the year prior. Justices had several months to ponder their ruling, examine the legal briefs, discuss the case with each other and with their law clerks and to weigh in on the central points of the ruling.
Third, the draft of the opinion was sent internally to justices well before the eventual June 2022 decision and was leaked to the public a month before. Justices didn’t just receive the opinion and examine it hours or days before the ruling was released on June 24th. They had weeks and even months to pore over the document and determine whether it reflected their analysis of the case.
This makes it so the New York Times article is little more than a hit piece meant to undermine the Dobbs ruling and confidence in the Supreme Court.
That length of time to scrutinize the subject of abortion is reflected in the opinion.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” Justice Samuel Alito wrote in the majority opinion. “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,” Alito wrote.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Although technically voting with the majority, Chief Justice John Roberts issued a concurrence saying he supports upholding the 15-week ban at issue in the case but not overturning Roe.
