Behind the scenes in the dismantling of Roe v. Wade


The strategy was to “really push what this was going to mean, for the integrity of the court, reversing such a long-standing individual personal freedom and the chaos it was going to create,” said Nancy Northup, president. of the Center for Reproductive Rights, which represented the clinic, in an interview. The clinic's lawyers felt that any erosion of the line of viability would only lead to the eventual undoing of Roe.

But upholding Roe had particular challenges. His reasoning, based on a right to privacy that was said to be implicit in the Constitution, had been widely criticized over the years, including by liberal academics who supported abortion rights as a matter of policy.

“It is not constitutional law,” wrote John Hart Ely, in The Yale Law Journal in 1973, “and gives almost no sense of obligation to attempt to be one.”

Justice Ginsburg also had qualms about the decision. In public appearances, he said the Supreme Court had “moved too far, too fast” in the ruling, and that he wished it had been based on a logic of gender equality.

During oral arguments, some of the conservative justices showed little interest in the chief's attitude. Judge Barrett, who has two children from Haiti, asked about adoption as an alternative to abortion. Justice Alito pressed Ms. Rikelman with skeptical questions about the viability standard and the history of abortion rights.

When she said that a 15-week limit would not give women enough time to decide the fate of their pregnancies, Judge Alito cited a passage from her brief. “You say 'there are no half measures here,'” she said. “Is that a correct understanding of your report?”

It was, Rikelman said.

Days later, the justices met again to hold a preliminary vote. Five were in favor of overturning Roe, meaning they seemed poised to prevail. The chief would have allowed Mississippi's 15-week ban (he would technically have placed it in the majority), but he wouldn't go any further. The three liberals would have confirmed the invalidation of the law by the lower courts.

When the boss is on the dominant side, he usually gives opinions. But in this case, several people on the court said, the majority's ranking member, Justice Thomas, assigned the opinion to Justice Alito.

In his draft, Justice Alito wrote that Roe and Casey were legally wrong, that the right to abortion had only a limited history in the United States, and that abortion destroyed what Mississippi law called the life of a “non-human being.” born”.

Now his mission was to keep his five vows together. Court members sometimes change their votes, which are not final until a decision is announced. When the rapid responses came in February, others on the court concluded that he had previously circulated the draft opinion among his four allies, gaining acceptance before sharing it with the full group of justices.

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