The high court confirmed the authenticity of the draft majority opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization that was leaked to Politico, but asserted that it is not the final version.
If the Alito draft from February essentially stands and at least four other justices sign on, it would overturn the 1973 Roe v. Wade decision that made abortion legal across the nation.
If the Supreme Court overturns Roe, however, the ruling would not ban abortion nationwide but rather leave to elected state legislatures to determine whether or under what restrictions abortion is allowed in their states.
“The potential overturn of Roe v. Wade simply means that the people and their elected representatives, not unelected judges, will once again have the right to protect unborn children and mothers in the law,” Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, told The Daily Signal in a statement.
“Radical pro-abortion elites want to impose abortion on demand up to birth and so they claim the sky is falling. Nowhere have they beat that drum harder than with regard to Texas, but the data show laws like the Heartbeat Act save thousands of lives when women choose life for their babies, supported by efforts like the state’s $100 million Alternatives to Abortion program,” Dannenfelser continued. “The overwhelming majority of Americans favor common sense abortion limits that Roe doesn’t allow. They deserve the chance to have a real debate and enact life-saving laws based on the consensus of the people.”
Here are fact checks of six assertions made about the leaked draft opinion.
1. ‘Mainstream Religions’ Undecided on Abortion
Talking to reporters Tuesday at Joint Base Andrews in suburban Maryland, President Joe Biden suggested that most major religions are undecided on the issue of abortion.
“Roe says what all basic mainstream religions have historically included, that the existence of a human life and being is a question,” Biden said. “Is it at the moment of conception? Is it six months? Is it six weeks?”
The president added: “The idea that we are going to make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court, I think, goes way overboard.”
Biden’s definition of what denominations or faiths are part of “mainstream” religions could be subjective. But the president’s own religious affiliation is the Roman Catholic Church, which asserts that life must be protected from conception to natural death.
Pope Francis reaffirmed this in a 2018 tweet, writing: “Every life counts: from the beginning to the end, from conception to natural death.”
The U.S. Conference of Catholic Bishops argues that life begins at conception.
“From earliest times, Christians sharply distinguished themselves from surrounding pagan cultures by rejecting abortion and infanticide,” the organization’s website says.
2. ‘Refuse to Acknowledge’ Ninth Amendment
In the same press gaggle, Biden also told reporters that the Ninth Amendment protects the right to an abortion. He said this is why, as a senator representing Delaware, he opposed the Supreme Court nominations of Robert Bork and others by Republican presidents.
“One of the reasons why I voted against a number of the members of the court, they refuse to acknowledge that there’s a Ninth Amendment,” Biden said. “They refused to acknowledge there is a right to privacy. There’s so many fundamental rights that are affected by that. I’m not prepared to leave that to the whims of the public at the moment.”
In fact, the language of the Ninth Amendment doesn’t specify anything about either the right to an abortion or the right to privacy. The amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In a 1965 ruling on birth control, Griswold v. Connecticut, Justice William O. Douglas said in the majority opinion that the Ninth Amendment was part of numerous other specified rights creating “emanations” that formed “penumbras” to allow the high court to infer the existence of an unenumerated right to privacy.
This opinion helped form the basis for the high court’s 1973 decision in Roe v. Wade requiring that every state legalize abortion, as well as its related 1992 ruling in Planned Parenthood v. Casey.
However, Biden’s assertion that the Ninth Amendment guarantees a right to privacy has been much debated in legal circles.
“The court’s [policy of] stare decisis is a judicial doctrine creating a rebuttable presumption that a court will follow its own past decisions,” said Sarah Parshall Perry, senior legal fellow at The Heritage Foundation, the parent organization of The Daily Signal.
“It must be a presumption in a system of limited government based on the rule of law, but it is not a mechanical formula of adherence to the latest decision,” Perry wrote in an email to The Daily Signal. “In fact, some of the court’s most significant decisions have overruled prior decisions—such as Brown v. Board of Education (1954), which overruled Plessy v. Ferguson (1896) and the doctrine of ‘separate but equal.’”
The Ninth Amendment to the Constitution does not create or protect any right to abortion, nor can that right be found elsewhere in the Constitution. In reality, enforcement of the Ninth Amendment would not protect abortion as the president has argued but would instead reduce the federal government to its constitutional limits—something a big-government president might not like.
3. ‘Fascism Down the Line’
Other commentators and entertainers are saying Alito’s draft opinion in Dobbs goes far beyond abortion.
CNN legal pundit Elliot Williams tweeted Tuesday: “You don’t need to read too far between the lines of Alito’s draft to see a rationale for overturning or weakening [other Supreme Court precedents].”
Williams’ tweet went on to list: “Griswold (the right to contraception) Obergefell (same-sex marriage) Loving (interracial marriage) Lawrence (consensual sex acts). And a host of others.”
On ABC’s “The View,” co-host Joy Behar asserted: “My worry is that this is just the beginning. Next they will go after gay marriage, and maybe Brown versus Board of Education. They already eroded our voting rights, a little bit. So I see fascism down the line here.”
Neither Williams nor Behar explained how a ruling on abortion by the Supreme Court would affect same-sex marriage, school desegregation, and interracial marriage, or lead to fascism.
However, in his draft majority opinion, Alito stressed that the ruling is limited.
“[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito’s draft opinion reads. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
4. ‘Rigged’ Supreme Court
The New York Times reported that Cecile Richards, who was president of the Planned Parenthood Federation of America from 2006 to 2018, “blamed the Republican Party for the current climate, saying it had rigged the Supreme Court and used its political power to take away women’s rights.”
On MSNBC’s “Morning Joe,” host Joe Scarborough quipped Tuesday: “Obviously, the perception for 70% of Americans waking up this morning, is, is going to be, most likely, that this is an illegitimate decision by an illegitimate court.”
The arguments of a “rigged” or “illegitimate” Supreme Court stem from a Senate Republican majority’s refusal in 2016 to consider President Barack Obama’s nomination of Merrick Garland to the high court to succeed Antonin Scalia, a conservative justice, after his unexpected death.
Further, Democrats have asserted that Senate Republicans should not have filled the Supreme Court seat of the late Justice Ruth Bader Ginsburg days before the 2020 election by confirming President Donald Trump’s nomination of Amy Coney Barrett.
Both 2016 and 2020 were presidential election years. But in 2016, when Democrat Obama nominated Garland, then-Senate Majority Leader Mitch McConnell, R-Ky., argued that voters should have a say in the sort of justice who would fill the Scalia vacancy.
Under the Constitution, the president nominates Supreme Court justices and the Senate decides whether to confirm that nominee. No law or rule says it would be “illegitimate” for a duly elected Senate majority not to vote to confirm one Supreme Court nominee but to vote to confirm another.
So, the current makeup of the Supreme Court would not be “rigged.”
After the elections in 2016 and 2018, Republicans maintained their Senate majority. That majority slipped away only after the November 2020 election, when Trump also lost to Biden after successfully appointing three conservatives to the Supreme Court.. (The new Democrat-controlled Senate confirmed Biden’s nomination of Garland as his attorney general.)
Scarborough also was inaccurate in his assertion about polling.
5. ‘Small Group of Countries’
After Alito’s draft opinion leaked, The New York Times asserted this in a news story about what would happen if the high court overturns Roe: “The United States would join a very small group of countries that has tightened abortion laws in recent years, as opposed to loosening them. Just three countries have done so since 1994: Poland, El Salvador and Nicaragua.”
The Times’ story also noted: “Under Roe, the United States is unusual in allowing abortion for any reason until around 23 weeks. Yet in many countries with earlier cutoffs, abortion is allowed for a wide variety of reasons.”
However, the Times didn’t specifically note that most Western European countries prohibit abortion after 15 weeks of pregnancy or less, which is what the Mississippi law that prompted the Dobbs case would do, an article in the Washington Examiner explained.
In Germany, an abortion may be performed in the first 12 weeks of pregnancy. In the Nordic countries of Denmark, Norway, and Finland, abortion is allowed in the first 12 weeks, with exceptions.
France also allows abortion until 12 weeks, but a woman may get permission from two doctors to get an abortion after the first trimester. In Spain, abortion is available for any reason until the 14th week, and in special circumstances, such as the mother’s health, up to 22 weeks.
In Sweden, the limit on when an abortion may be performed is 18 weeks, almost a month longer than the Mississippi law. Iceland allows abortion for up to 22 weeks. The Netherlands and the United Kingdom both allow abortions for up to 24 weeks in most cases.
Generally, these countries all provide exceptions.
6. ‘Legislation That Codifies Roe … Now’
Several Democrats already have called for the Senate to eliminate the filibuster to codify “abortion rights” as federal law.
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW,” Sen. Bernie Sanders, I-Vt., who caucuses with the Democrats, tweeted.
“And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,” Sanders continued.
Senate rules require 60 votes to end debate on a measure and move to a floor vote without the threat of a filibuster to block the measure.
Despite demands such as Sanders’, there almost certainly aren’t the numbers for a Senate split 50-50 to do anything “now.” Democrats have a functional majority only because Vice President Kamala Harris is able to cast a tie-breaking vote.
In February, Democrats brought up a procedural vote on the bill to codify Roe, called the Women’s Health Protection Act, which died after garnering just 48 votes, well short of 60 votes to overcome a fillibuster.
Sen. Joe Manchin, D-W.Va., voted with Republicans to defeat a motion to begin debate. Six other senators didn’t vote on the motion.
Moreover, two pro-choice Republicans, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, have been ardent supporters of protecting the Senate filibuster.
Ken McIntyre contributed to this report.
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