Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.Īlito reasoned in the draft that substantive due process rights must be "deeply rooted" in US history and tradition and essential to the nation's "scheme of ordered liberty." Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons. Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality.
Its reasoning was exceptionally weak, and the decision has had damaging consequences," Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only "deepened division" in society.Īccording to Alito, the right to abortion recognized in Roe must be overturned because it is not valid under the Constitution's 14th Amendment right to due process.Ībortion is among a number of fundamental rights that the court over many decades recognized at least in part as what are called "substantive" due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015. "Roe was egregiously wrong from the start. The Roe decision, one of the court's most important and contentious rulings of the 20th century, recognized that the right to personal privacy under the US Constitution protects a woman's ability to terminate her pregnancy. The court confirmed the authenticity of the leaked draft but called it preliminary. The court's 6-3 conservative majority, including Alito, has become increasingly assertive on a range of issues.
"The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognized by the Supreme Court," Sepper said. The draft's legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights that Americans take for granted in their personal lives, according to University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion. Wade ruling that legalized the procedure nationwide. 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. US Supreme Court Justice Samuel Alito's draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms in the United States related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts.