The draft ruling, disclosed in a leak that prompted Chief Justice John Roberts on Tuesday to launch an investigation, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v. Wade ruling that legalized the procedure nationwide.
The court’s 6-3 conservative majority, including Mr. Alito, has become increasingly assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary.century, recognized that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy.
Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators. In the draft, Mr. Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called “potential life.”
Mr. Alito’s opinion resembles his dissent in the court’s same-sex marriage ruling in which he said the 14Amendment’s due process promise protects only rights deeply rooted in America’s history and tradition. “On interracial marriage, contraception and same-sex marriage, for one reason or another there is no likelihood the court is going to revisit those decisions,” Northwestern University law professor John McGinnis said.
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