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Casey, the Court located the right to an abortion in the due-process clause of the Fourteenth Amendment. And how do we know that the Bill of Rights didn’t outline all of our liberties? Because the Ninth Amendment specifically states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
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By spelling out (some) of our fundamental liberties, the citizens of the new republic could be assured that the federal government would be restrained. They existed unless a constitutional provision declared otherwise.Īnti-federalists, however, insisted on the Bill of Rights as a belt-and-suspenders safeguard against federal encroachment. In plain English, this means that the Constitution did not need to spell out our individual rights. At the risk of oversimplifying a complex debate, the quick explanation is that many of the Founders viewed the Constitution as reserving “all rights and powers that were not positively granted to the federal government” to the people or the states. Because the Constitution doesn’t even mention abortion, how can one argue that it protects a right to an abortion? Don’t we have to locate the right in the text itself?īut the matter is not so simple, and the reason relates to the basic theory of American liberty. The Court’s job is not to determine which rights we should possess but rather the rights we do possess.Ī surface reading of the Constitution would indicate an easy answer to the question. It is not “Should American women possess a right to abortion?” but “Does the American Constitution protect abortion rights?” The distinction is of paramount importance. It not only represents a potential preview of one of the most significant Court decisions in a generation, but also articulates a compelling understanding of the nature of liberty and the role of the judiciary in American constitutional law.Īdam Serwer: Alito’s plan to repeal the 20th centuryįirst, it’s important to understand the question before the Supreme Court.
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Tribe’s pulling strings backstage.”Įven so, Alito’s draft is consequential. Casey but later switched his vote to affirm Roe, “a flip attributed in court circles to liberal constitutional scholar Laurence H. In 1992, The Washington Post reported that Justice Anthony Kennedy initially voted to reverse Roe v. Decisions are not final until opinions are issued, and dramatic history exists of a Supreme Court justice changing his mind on abortion during deliberations. We certainly don’t know yet if it’s a preview of the Court’s actual ruling. Jackson Women’s Health represents the current consensus of a majority of the Supreme Court. We do not know if Justice Samuel Alito’s leaked draft majority opinion in Dobbs v. Sign up for David’s newsletter, The Third Rail, here.