An intriguing report from The New York Times revealed on Friday details about the workings of the Supreme Court in the lead-up to the decision to overturn Roe v. Wade. The report indicated that the Court delayed announcing its decision to hear a legal case concerning the legality of abortion until it appeared less political, and no justice wanted to even consider the case, including Justice Amy Coney Barrett.
Key Facts
The Supreme Court overturned Roe v. Wade in its decision in Dobbs v. Jackson Women’s Health Organization in June 2022, which pertains to the legality of a 15-week abortion ban in Mississippi. The infamous draft opinion was leaked ahead of time by Politico in May.
At the beginning of 2021, the justices initially voted to take up the case – months before they publicly announced their decision in May – but Justice Brett Kavanaugh convinced them to delay the announcement, believing it would be better organizationally and create a “posthumous appearance” following the death of Justice Ruth Bader Ginsburg in September 2020, which changed the ideological balance of the Court and led to speculation that the Court would overturn Roe.
In the end, the justices decided to stick to this plan, and Justice Amy Coney Barrett, who was appointed to the Court immediately after Ginsburg’s death, threatened to withdraw her support for hearing the case if it did not go forward, according to The New York Times report – although Barrett ultimately changed her position and voted against taking up the case by the time it was announced, meaning no justice was willing to consider the case.
What We Don’t Know
Who leaked the Dobbs opinion to Politico. The investigations conducted by The New York Times did not reveal the identity of the individual who published the draft opinion in Politico, and the Court was unable to determine this after conducting an inquiry into the leak. This leak had an effect in confirming the vote to overturn Roe, and this security breach was a “blow” to Chief Justice Roberts and Justice Breyer in their efforts to reach a compromise.
What to Watch
The Supreme Court will consider another significant abortion-related case this semester, as the Court announced this week that it would review two cases concerning restrictions on the abortion drug mifepristone. The Court will consider updates to the federal government’s approval of the drug which has become available through telehealth and mail delivery, but it will not decide whether mifepristone should be banned entirely, as some plaintiffs opposing abortion rights initially wanted.
Stunning Fact
The report also details the Court’s deliberations in its consideration of whether to block Texas’s abortion law known as SB8, which took effect even before the Dobbs decision was issued. Ultimately, the Court decided not to block the law before it went into effect – and later affirmed it significantly when the law returned to the Court – with The New York Times stating that the conservative justices on the Court were largely in favor of allowing the enforcement of SB8, but Roberts resisted and urged them to stay the law while they considered the matter. “It is certain (and discussed here) that the existence of the law itself results in a restriction of the practice of a recognized constitutional right,” Roberts wrote in a message to his colleagues, according to The New York Times report. Gorsuch also waited to express his opinion on this matter until the day after the law took effect, leading to a delay in the Court’s order, with the reason for this remaining unclear. Minutes before the law went into effect, Sotomayor wrote in an email to her colleagues, addressed to Alito: “What a pity that we cannot do the right thing.”
Background
Homepage
The Supreme Court’s ruling in the Dobbs case overturned decades of established legal precedents that affirmed the right to abortion under federal law, now leaving it to the states to decide whether abortion can be banned. Alito wrote in his majority opinion for the court that the Supreme Court’s decision in Roe v. Wade in 1973 was “egregiously wrong,” arguing that this landmark ruling should be overturned because the right to abortion was not explicitly stated in the Constitution nor “deeply rooted in this nation’s history and traditions.” This 6-3 ruling led to the banning of abortion in at least dozens of states across the United States—and other laws that were blocked in court—and sparked a political storm, pushing pro-abortion rights Americans to the polls and affecting election outcomes following the ruling. Seven states have now voted in favor of abortion rights in ballot measures in 2022 and 2023, and it is widely expected that this issue will remain central in the upcoming elections in 2024. Additionally, the controversial ruling by the court prompted widespread protests across the country and security issues for judges, as protesters gathered outside the judges’ homes, shared their personal information online, and a man in California was arrested for allegedly attempting to kill Kavanaugh.
Looking Ahead
The Supreme Court will review another high-profile abortion case this semester, as the court announced this week that it will consider two cases regarding restrictions on the abortion pill mifepristone. The court will look at updates to the federal government’s approval of the drug, which has become available through telehealth and mail delivery, but it will not decide whether mifepristone should be banned altogether, as the plaintiffs who oppose abortion rights initially wanted.
Stunning Fact
The report also outlines the court’s deliberations regarding whether to block the Texas abortion law known as SB8, which went into effect even before the Dobbs ruling was issued. Ultimately, the court decided not to block the law before it went into effect—and later upheld it significantly when the law returned to the court—and the New York Times reported that the conservative justices on the court were mostly in favor of allowing SB8 to be enforced, although Roberts resisted and asked them to stay the law while they considered the matter. “There is no doubt (and we have discussed it here) that the mere existence of the law itself imposes a burden on the exercise of an acknowledged constitutional right,” Roberts wrote in a message to his colleagues, according to the New York Times report. Gorsuch also waited to express his opinion on the matter until the day after the law went into effect, which delayed the court’s order, with no clear reason given for that. Minutes before the law went into effect, Sotomayor emailed her colleagues, directed at Alito: “What a pity we cannot do the right thing.”
Main Background
The Supreme Court’s ruling in the Dobbs case overturned decades of established legal precedents that affirmed the right to abortion under federal law, now leaving it to the states to decide whether abortion can be banned. Alito wrote in his majority opinion for the court that the Supreme Court’s decision in Roe v. Wade in 1973 was “egregiously wrong,” arguing that this landmark ruling should be overturned because the right to abortion was not explicitly stated in the Constitution nor “deeply rooted in this nation’s history and traditions.” This 6-3 ruling led to the banning of abortion in at least dozens of states across the United States—and other laws that were blocked in court—and sparked a political storm, pushing pro-abortion rights Americans to the polls and affecting election outcomes following the ruling. Seven states have now voted in favor of abortion rights in ballot measures in 2022 and 2023, and it is widely expected that this issue will remain central in the upcoming elections in 2024. Additionally, the controversial ruling by the court prompted widespread protests across the country and security issues for judges, as protesters gathered outside the judges’ homes, shared their personal information online, and a man in California was arrested for allegedly attempting to kill Kavanaugh.
Reading
Future Prospects
The Supreme Court will hear another high-stakes abortion case this semester, as the court announced this week that it will consider two cases related to restrictions on the abortion pill mifepristone. The court will look into updates to the federal government’s approval of the drug, which has become available via telehealth and mail delivery, but it will not decide whether mifepristone should be banned entirely, as plaintiffs opposing abortion rights initially wanted.
Stunning Information
The report also details the court’s deliberations regarding whether the Texas abortion law known as SB8, which went into effect even before the Dobbs decision, should be banned. Ultimately, the court decided not to block the law before it took effect – and later largely upheld it when the law returned to the court – with the New York Times reporting that the court’s conservative justices were largely in favor of allowing SB8 to be enforced, but Roberts resisted and asked them to stay the law while they considered the matter. “It is certain (and has been discussed here) that the law itself operates to restrict the exercise of a recognized constitutional right,” Roberts wrote in a message to his colleagues, according to the New York Times. Gorsuch also waited to express his opinion on the matter until the day after the law went into effect, which delayed the court’s order, and it was unclear why. Just minutes before the law took effect, Sotomayor emailed her colleagues, directed at Alito: “How sad that we cannot do the right thing.”
Main Background
The Supreme Court’s ruling in the Dobbs case overturned decades of settled legal precedents that affirmed the right to abortion under federal law, leaving it now to the states to determine whether abortion can be banned. Alito wrote in the court’s majority opinion that the Supreme Court’s 1973 ruling in Roe was “egregiously wrong,” arguing that the landmark decision should be overturned because the right to abortion is not explicitly stated in the Constitution or “deeply rooted in this Nation’s history and traditions.” This 6-3 ruling led to abortion bans in the United States in at least a dozen states – along with other laws that were struck down in court – and sparked a political uproar, driving pro-abortion rights Americans to the ballot box and influencing election outcomes in the wake of the ruling. Seven states have now voted in favor of abortion rights in the 2022 and 2023 election decisions, and this issue is widely expected to remain central in the upcoming 2024 elections. The controversial ruling also sparked widespread protests across the country and security issues for justices, as protesters gathered outside the justices’ homes and published their personal information online, with a California man arrested for attempting to murder Kavanaugh.
Future Reading
The Supreme Court will hear another high-stakes abortion case this semester, as the court announced this week that it will consider two cases related to restrictions on the abortion pill mifepristone. The court will look into updates to the federal government’s approval of the drug, which has become available via telehealth and mail delivery, but it will not decide whether mifepristone should be banned entirely, as plaintiffs opposing abortion rights initially wanted.
Stunning Information
The report also details the court’s deliberations regarding whether the Texas abortion law known as SB8, which went into effect even before the Dobbs decision, should be banned. Ultimately, the court decided not to block the law before it took effect – and later largely upheld it when the law returned to the court – with the New York Times reporting that the court’s conservative justices were largely in favor of allowing SB8 to be enforced, but Roberts resisted and asked them to stay the law while they considered the matter. “It is certain (and has been discussed here) that the law itself operates to restrict the exercise of a recognized constitutional right,” Roberts wrote in a message to his colleagues, according to the New York Times. Gorsuch also waited to express his opinion on the matter until the day after the law went into effect, which delayed the court’s order, and it was unclear why. Just minutes before the law took effect, Sotomayor emailed her colleagues, directed at Alito: “How sad that we cannot do the right thing.”
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