Leaked SCOTUS draft may overturn Casey


(NewsNation) — A leaked document obtained by Politico of Justice Samuel Alito’s full draft opinion indicates that the Supreme Court could overturn Roe v. Wade — the landmark 1973 decision that constitutionally protects a woman’s right to have an abortion.

Chief Justice John Roberts confirmed the authenticity of a leaked draft opinion Tuesday morning. The abortion issue has proven controversial as it has wound its way through U.S. courts dating back half a century.

Abortion was legal in several states under certain conditions prior to Roe v. Wade, but in 1973, the U.S. Supreme Court recognized a woman’s constitutional right to an abortion.

The 7-2 decision established that a woman’s right to make her own medical decisions, including the choice to have an abortion, is protected under the 14th Amendment. 

In particular, the Due Process Clause of the 14th Amendment provides a fundamental right to privacy that protects a woman’s liberty to choose whether or not to have an abortion, according to the decision.

Planned Parenthood v. Casey

The potential decision, as outlined in the leaked documents, repudiates not just Roe v Wade but the 1992 Planned Parenthood vs Casey decision as well.

In 1992, the Supreme Court limited but did not eliminate access to abortions in the case of Planned Parenthood v. Casey.

Pennsylvania had sought to circumvent Roe by imposing procedural hurdles upon women seeking abortions. Planned Parenthood of Southeastern Pennsylvania filed a lawsuit, arguing that the Abortion Control Act went against the ruling in Roe v. Wade.

The 1992 multi-part Supreme Court decision affirmed the basic ruling of Roe v. Wade, that the state is prohibited from banning most abortions.

But the Planned Parenthood v. Casey decision also ruled in favor of new requirements such as a mandatory 24-hour waiting period and parental consent for minors prior to undergoing an abortion procedure.

The Casey decision also ruled that states may regulate abortions so as to protect the health of the mother and the life of the fetus.

The court turned down Pennsylvania’s requirement for spousal consent prior to undergoing the procedure.

Reiterating some of the reasoning in Roe, the Casey decision reaffirmed a woman’s privacy protections against state interference. 

The Casey ruling is lesser-known than Roe but is considered just as important. It not only reaffirmed Roe’s abortion right but broadened the authority of the state to regulate it. 

What Came Next

In 2007, the Supreme Court upheld a federal ban on dilation and extraction, a procedure opponents call “partial-birth abortion”. 

When President Trump was elected president in 2016, it was partially on his promise to nominate conservative justices in an attempt to overturn Roe v Wade.

Trump then nominated Judge Neil Gorsuch to succeed Antonin Scalia in 2017, Judge Brett Kavanaugh to succeed Anthony Kennedy in 2018 and Amy Coney Barrett to replace Ruth Bader Ginsburg in 2020.

In 2021, the Supreme Court agreed to consider Dobbs. v. Jackson Women’s Health Organization, which was a challenge to Mississippi’s ban on abortion after 15 weeks. Mississippi’s ban would prohibit the procedure far earlier than current Supreme Court precedent allows.

This brings us to 2022, wherein the first case in modern history a draft decision was leaked to the public while the case was still pending.

The Hill contributed to this report.

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