Justice Samuel A. Alito Jr., who wrote the draft opinion for the Supreme Court overturning Roe v. Wade, said in it that nothing in the text of the Constitution supports a right to abortion and that the authority to regulate abortion belonged to the states.
He wrote that Planned Parenthood v. Casey, which reaffirmed Roe in 1992, “short-circuited democracy.”
In the draft, Justice Alito said the decision was “not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests.”
He also cited the history of punishing “abortionists” in the United States, and said there was evidence that the laws enacted against abortion were “spurred by a sincere belief that abortion kills a human being.”
Here are some key passages from his drafted argument, which could change before official publication.
Justice Alito said Roe imposed a ‘highly restrictive regime on the entire nation.’
At the time of Roe, 30 states still prohibited abortion at all stages. In the years prior to that decision, about a third of the states had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire nation, and it effectively struck down the abortion laws of every single state.
He wrote that ‘the Constitution makes no reference to abortion.’
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.
‘Roe and Casey have enflamed debate,’ he said.
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
He cited ‘an unbroken tradition of prohibiting abortion’ until Roe.
The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
He argued that elected representatives can decide ‘how abortion should be regulated.’
Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
Women are not without ‘political power,’ Justice Alito added.
Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.