The Supreme Court may be poised to take back American women’s right to an abortion.
A draft opinion published by Politico onMonday andwritten by Justice Samuel Alito appears to have the support of four other Republican-appointed justices. Things could still change, but the draft eviscerates Roe v. Wade and would overturn decades of law founded on privacy rights.
RELATED: Read the full report on the draft opinion and the Mississippi case on which it focuses.
This should not be shocking if you’ve paid attention to activists and a conservative legal movement that has made this moment their mission for nearly 50 years.
If Roe is overturned, it might come as a complete shock if all you’ve watched is Supreme Court confirmation hearings for the past generation, when obfuscation by nominees on the issue of abortion was elevated to an art form. Justices would never pledge to uphold the law during confirmation, but they paid it great deference as a precedent.
Senator feels misled
Senators who support abortion rights voted to confirm some of these justices assuming they would respect the precedent.
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice (Neil) Gorsuch and Justice (Brett)Kavanaugh said in their hearings and in our meetings in my office,” Republican Sen. Susan Collins of Maine said in a statement Tuesday.
Draft opinion eviscerates Roe v. Wade
In the draftopinion, Alito calls the Roe decision “egregiously wrong” and “exceptionally weak” and argues Roe must be overturned. He said the decision was on a “collision course” with the Constitution.
“This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on,” he wrote.
These are the words of someone with strong opinions on the issue.
RELATED: CNN’s Ariane de Vogue breaks down Alito’s draft opinion
Alito promised to respect precedent
At his confirmation hearing in 2006, Alito promised to keep an open mind on abortion cases and to respect stare decisis, the legal principle by which precedent takes on increasing importance.
“Today, if the issue were to come before me,” he said in 2006, “if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.”
Read CNN’s 2006 report on Alito’s confirmation hearing.
In the hearing, Alito tried to separate himself from a memo he wrote in 1985 as a lawyerin the Reagan administration, in which he said the Constitution did not protect a right to an abortion. He may now hand down that decision as a Supreme Court justice.
Clarence Thomas hadn’t given it much thought
Years earlier, in 1991, then-nominee Clarence Thomas told senators he hadn’t given the issue of Roe v. Wade much thought.
“I have not made a decision one way or the other with respect to that important decision,” Thomas told Sen. Patrick Leahy.
As a confirmed justice, Thomas pretty quickly turned into a major critic of the decision and has long pushed for it to be overturned.
Gorsuch said Roe was the ‘law of the land’
While Donald Trump promised as Presidentto appoint justices who would overturn Roe v. Wade, his three nominees said very different things at their confirmation hearings.
“I would have walked out the door. It’snot what judges do,” Gorsuch said during his confirmation hearingwhen asked how he would have reacted if Trump asked him to overturn Roe v. Wade.
Gorsuch explained Roe in thehearing, saying the decision held that “a fetus is not a person for purposes of the 14th Amendment.”
Sen. Dick Durbin asked Gorsuch if he accepted that.
“That’s the law of the land. I accept the law of the land, senator, yes,” Gorsuch said.
Kavanaugh said he understood Roe’s importance
Like Alito, Kavanaugh had also written a memo as a government lawyer in which he expressed doubt about the precedent of Roe.
But at his confirmation hearing, he said he understood it.
“As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh told senators, although he defended decisions he had made as an appeals court judge that limited access to abortions. Read CNN’s report from his 2018 confirmation hearing.
(Later, explaining her decision to vote for Kavanaugh’s confirmation, Collins told CNN’s Dana Bash she had full confidence he would not vote to overturn Roe.)
Amy Coney Barrett promised to put her personal feelings aside
At her confirmation hearing to take over for Justice Ruth Bader Ginsburg, Justice Amy Coney Barrett said she would set aside her personal opposition to abortion in order to follow the law as a judge.
“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases, nor should they; it would be in conflict with my judicial oath,” she said.
Barrett would not say if she felt that Roe was correctly decided, according to CNN’s analysis at the time, but she did acknowledge that Roe “held that the Constitution protected a woman’s right to terminate pregnancy.”
John Roberts believes in ‘vindication of the rule of law’
Chief Justice John Roberts may not vote with other Republican-appointed justices to fully overturn Roe v. Wade, but he has appeared open to affirming a Mississippi law that would restrict abortion in that state to 15 weeks of gestation.
At his 2005 confirmation hearing, he said Roe was entitled to respect as a precedent, and CNN’s Joan Biskupic has noted that unlike Thomas, Alito and Gorsuch, Roberts has not pushed as a justice to reconsider Roe.
During an exchange on the topic of abortion at his confirmation hearing, he did say that his life’s work, about which he feels passionately, is “vindication of the rule of law.”
“Without it, any other rights that you may agree with as a matter of policy are meaningless,” Roberts said.
