Justice Alito: ‘procuring an abortion is not a fundamental constitutional right’

by Samantha Flom

Photo: Alamy

The U.S. Supreme Court handed down its final decision on the Dobbs v. Jackson Women’s Health case Friday, overturning the precedent set by landmark abortion cases Roe v. Wade and Planned Parenthood v. Casey.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the court syllabus declared.

The majority decision to uphold a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy was delivered by Justice Samuel Alito, with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett forming the majority in 5-3-1 ruling.

In the majority opinion, Alito held that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”

Chief Justice John Roberts wrote a separate concurring opinion in which he noted that he would personally take a “more measured course” than overturning the previous cases outright, but that he nonetheless sided with the majority that the Mississippi law should be upheld.

“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis,” Roberts wrote. “That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability.”

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan authored a dissenting opinion, holding that the majority ruling “discards” the balance previously struck by allowing states to regulate abortion post-viability and enforces “draconian restrictions” on women.

Referring to the rulings of previous justices, they wrote: “The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights. It is hard—no, it is impossible–to conclude that anything else has happened here.”

The dissenters added, “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

The decision comes amid the political upheaval following the historic leak of a Feb. 10 draft opinion on the case last month, after which several conservative justices were targeted by leftist protesters, with some even receiving death threats.

The shocking leak itself was also the subject of controversy, with Justice Clarence Thomas criticizing it as “tremendously bad” and Chief Justice John Roberts ordering an investigation into its source.

The final ruling is expected to be met with further protests from pro-abortion groups and praise from pro-life advocates.

In response to the ruling, Rep. Marjorie Taylor Greene, R-Ga., said, “The Supreme Court had the courage, they had the bravery overturning Roe v. Wade, giving it back to the states, and hopefully this can be the beginning to the end of abortion.”

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