The Daily Parker

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Stare decisis for thee, not for me

Politico reported yesterday evening that the US Supreme Court voted back in February to overturn Roe v Wade, and they have Justice Alito's (R) first-draft opinion to prove it:

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.

No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.

Alito's opinion lists the many times the Court has overturned previous decisions, but if this one stands, it'll be one of the rare times—if not the only time—the Court has overturned a decision granting rights. That is, sure, Plessy was wrong, but when the Court overturned it in Brown, they extended rights that the previous decision had curtailed.

The Supreme Court confirmed that the document is authentic, though not "the final position of any member on the issues in the case." Reports indicated that Justices Kavanaugh (R), Comey Barret (R), Gorsuch (R), and Thomas (R) joined Alito, while Chief Justice Roberts (I) has not. Justices Kagan (I), Sotomayor (I), and Breyer (I) have apparently already drafted dissents.

As one might guess, people have reacted to this news with some vigor:

  • Senator Susan Colins (R-ME) expressed surprise and alarm that Justices Kavanaugh (R) and Gorsuch (R) could possibly have prevaricated—nay, dissembled even!—in their confirmation hearings when they claimed to support stare decisis regarding Roe, for they are all, all honorable men.
  • Senate Majority Leader Chuck Schumer (D-NY) promised a vote on abortion rights during the current term despite opposition from Senator Joe Manchin III (D?-WV).
  • Abortion-rights groups uniformly condemned the news, even as anti-abortion groups without irony praised it for protecting potential lives (cf. lives already in being, like the women needing the procedure).

This is a developing story. I'll post updates as warranted.

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