A close reading of Alito's draft abortion ruling reveals these 8 problems

[Jilly_in_VA]

According to a leaked draft of the Supreme Court’s opinion on a Mississippi law that bans abortion at 15 weeks, a majority of the Supreme Court seems determined to scrap precedent and fundamentally change the constitutional landscape by ruling that women do not have a right to an abortion.

The U.S. Constitution protects fundamental rights, both those that are specifically listed, like the right to speech in the First Amendment, and those that are not specifically listed, including privacy rights such as the right to marry and the right to autonomy over your own body. Roe v. Wade, decided in 1973, first held that abortion was among those rights, and Planned Parenthood v. Casey in 1992 upheld that right. Both have shortcomings, but they are not so flawed that they should be struck down.

Yet that is what Justice Samuel Alito’s draft opinion would do. He declares that Roe and Casey were egregiously wrong and overrules them. Such a decision would allow states to outlaw abortion, which most red states are poised to do. His opinion is not final, and the official decision is expected to be handed down only this summer. But it is worth conducting a close reading of his draft, obtained by Politico, and examining the key quotes that reveal some of the many problems with his legal analysis.

https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205
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Read on. Good reasoning. But PLEASE READ before commenting. Thanks.

[MN2theMax]

1. Those are not small problems

Really picks the ruling down to the bones. It comes down to politics.

"Yet that is exactly what Alito’s opinion does: It overrules decades-old precedent to impose conservative justices’ anti-abortion views because they finally have the votes to do so."

[LetMyPeopleVote]

2. There are law reviews rushing to do symposiums on this opinion

I still remember doing four all nighters in a row for a symposium back in the day before personal computers. My kids tease me that I took the bar exam on stone tablets.

This is a good article and thank you for posting it. Each of the eight topics listed above would make a great article all on its own. There are still other issues that are more abstract as to why this draft opinion is so horrible. I have been following a number of legal blogs and lawyer types. There will be a ton of good law review articles on the final opinion.

Here is some analysis that are related to issues 1 and 2 in the article that I know will be addressed in law reviews.

Link to tweet

There are a good number of issues in this draft. It is really poorly drafted opinion.

BTW, from now on it is fair to refer to the five justices who join in this opinion as partisan hacks and not as justices

Thank you again for posting this article

[Ilsa]

3. Happy to be 5th rec.

Good article exposing Alito's strain to make his case.

[Hoyt]

4. Optimistic view is Alito wrote worst case opinion in February and then some Justices said "Hell No,

we can't do that" before final opinion drafted and approved. Ain't counting on it, though.

[Jilly_in_VA]

5. IMNSHO

Alito is a crank and a hack, but there are three justices even worse than him on the court who totally have no business being there. there's been someone like Alito on the court for about as long as I can remember, but nobody like Thomas, Beer Boy, or Amy Bony Carrot in my lifetime.

[love_katz]

7. Amy Bony Carrot.

[love_katz]

6. Kick and recommend.

To me, the violation of the establishment clause sticks out like a sore thumb. The view that the fundy fanatics are trying to impose is so clearly their religious view. It seems to be blatantly a violation to give them that kind of special treatment. This country has many other religions besides that of the fundy fanatics, and plenty of atheists and agnostics who would oppose having any religious view imposed on them. And no matter what Alito alleges, sexism and discrimination against women have most certainly NOT gone away! We are not equally represented in government or employment, and we haven't achieved economic parity either, even though women are more than 50% of the population. This is all so clearly a power grab and an effort to create a bloodless coup by overthrowing our democracy and replacing it with a theocracy.

[Igel]

8. Paywall.

So I obey and comment not.

[Martin68]

9. Excellent analysis. Thanks for sharing

[Sick_n_Tired]

10. Interesting assessments

But I couldn’t get past the heavy gender exclusive language focusing solely on women getting pregnant. It should be editorial normative to use the inclusive phrase “pregnant person”. It’s hurtful to read exclusive language on top of the blow that Roe is endangered.

[Ray Bruns]

11. A close reading of Alito's draft abortion ruling reveals Alito is pulling his

reasoning out of his ass.

FIFY