In their words: US Supreme Court justices’ records on abortion | Courts News

When the Supreme Courtroom heard arguments in a serious abortion case from Mississippi in December, it was clear to observers that there was substantial help among the many court docket’s conservative majority for overruling two landmark choices that established and reaffirmed a lady’s proper to an abortion.

So when a draft of the opinion within the case written by Justice Samuel Alito was leaked late Monday, the potential end result — the overruling of Roe v Wade and Deliberate Parenthood v Casey — was not the shock. It was that the draft was leaked in any respect.

Even earlier than arguments within the present case, nonetheless, the justices themselves have had so much to say about abortion over time — in opinions, votes, Senate affirmation testimony and elsewhere. One justice, Clarence Thomas, has overtly referred to as for overruling Roe and Casey.

A sampling of their feedback:

Chief Justice John Roberts sits during a group photo at the Supreme Court in Washington., DC
Chief Justice John Roberts has each upheld and struck down state restrictions on abortion [File: Erin Schaff/The New York Times via AP pool]

Chief Justice John Roberts

Roberts has voted to uphold restrictions in two main abortion circumstances, within the majority in 2007 to uphold a ban on a way of abortion opponents name “partial-birth abortion” and in dissent in 2016 when the court docket struck down Texas restrictions on abortion clinics in a case referred to as Entire Lady’s Well being.

However when a nearly similar legislation from Louisiana got here earlier than the court docket in 2020, Roberts voted towards it and wrote the opinion controlling the result of the case and hanging down the Louisiana legislation. The chief justice mentioned he continues to consider that the 2016 case “was wrongly determined” however that the query was “whether or not to stick to it in deciding the current case”.

Roberts’ views on when to interrupt with court docket precedent might decide how far he’s keen to go within the Mississippi case presently earlier than the court docket. At his 2005 affirmation listening to, he mentioned overturning precedent “is a jolt to the authorized system”, which relies upon partly on stability and even-handedness. Considering that an earlier case was wrongly determined just isn’t sufficient, he mentioned. Overturning a case requires trying “at these different components, like settled expectations, just like the legitimacy of the Courtroom, like whether or not a specific precedent is workable or not, whether or not a precedent has been eroded by subsequent developments”, Roberts mentioned then.

In the identical listening to, Roberts was requested to clarify his presence on a authorized transient filed by the George HW Bush administration that mentioned Roe’s conclusion that there’s a proper to abortion has “no help within the textual content, construction, or historical past of the Structure”. Roberts responded that the transient mirrored the administration’s views.

 Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia's new Nathan Deal Judicial Center in Atlanta.
Supreme Courtroom Justice Clarence Thomas, a conservative, has lengthy advocated overturning Roe v Wade [File: John Amis/AP Photo]

Justice Clarence Thomas

Thomas voted to overturn Roe in 1992, in his first time period on the court docket, when he was a dissenter in Deliberate Parenthood v. Casey. He has repeatedly referred to as for Roe and Casey to be overturned since.

In 2000, he wrote in dissent when the court docket struck down Nebraska’s ban on “partial-birth abortion”.

Recounting the court docket’s determination in Roe, he wrote: “In 1973, this Courtroom struck down an Act of the Texas Legislature that had been in impact since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. As a few of my colleagues on the Courtroom, previous and current, ably demonstrated, that call was grievously unsuitable. Abortion is a singular act, through which a lady’s train of management over her personal physique ends, relying on one’s view, human life or potential human life. Nothing in our Federal Structure deprives the individuals of this nation of the appropriate to find out whether or not the results of abortion to the fetus and to society outweigh the burden of an undesirable being pregnant on the mom. Though a State could allow abortion, nothing within the Structure dictates {that a} State should achieve this.”

Supreme Court Associate Justice Stephen Breyer holds up a copy of the United States Constitution as he announces his retirement in the Roosevelt Room of the White House.
Supreme Courtroom Affiliate Justice Stephen Breyer, liberal jurist, is retiring on the finish of the court docket’s current time period [File: Andrew Harnik/AP Photo]

Justice Stephen Breyer

Breyer has been the lead writer of two court docket majorities in defence of abortion rights, in 2000 and 2016. He has by no means voted to maintain an abortion restriction, however he has acknowledged the controversy over abortion.

Hundreds of thousands of People consider “that an abortion is akin to inflicting the demise of an harmless youngster”, whereas thousands and thousands of others “concern {that a} legislation that forbids abortion would condemn many American girls to lives that lack dignity”, he wrote within the Nebraska case 21 years in the past, calling these views “nearly irreconcilable”. Nonetheless, Breyer wrote, as a result of the Structure ensures “elementary particular person liberty” and should govern even when there are robust divisions within the nation, “this Courtroom, in the midst of a era, has decided after which redetermined that the Structure presents fundamental safety to the lady’s proper to decide on.”

Associate Justice Samuel Alito sits during a group photo at the Supreme Court
Affiliate Justice Samuel Alito wrote the leaked draft opinion overturning Roe v Wade [File: Erin Schaff/The New York Times via AP pool]

Justice Samuel Alito

Alito has an extended observe report of votes and writings opposing abortion rights, as a jurist and, earlier, a authorities lawyer.

Alito has voted to uphold each abortion legislation the court docket has thought of since his 2006 affirmation, becoming a member of a majority to uphold the federal “partial-birth” abortion legislation, and dissenting within the 2016 and 2020 circumstances.

As a federal appeals court docket choose, he voted to uphold a sequence of Pennsylvania abortion restrictions, together with requiring a lady to inform her partner earlier than acquiring an abortion. The Supreme Courtroom finally struck down the notification rule in Casey and reaffirmed the abortion proper in 1992 by a 5-4 vote.

Working for the Reagan administration in 1985, Alito wrote in a memo that the federal government ought to say publicly in a pending abortion case “that we disagree with Roe v. Wade”. About the identical time, making use of for a promotion, Alito famous he was “significantly proud” of his work arguing “that the Structure doesn’t defend a proper to an abortion”.

Supreme Court Associate Justice Sonia Sotomayor waves after speaking during an event at Washington University in St. Louis
Supreme Courtroom Affiliate Justice Sonia Sotomayor waves after talking at Washington College in St. Louis [Jeff Roberson/AP Photo]

Justice Sonia Sotomayor

Sotomayor joined the court docket in 2009 with nearly no report on abortion points however has voted repeatedly in favour of abortion rights since then. Lately, when the court docket allowed Texas’ restrictive abortion legislation to take impact, Sotomayor accused her colleagues of burying “their heads within the sand”. She was within the majority within the Texas and Louisiana abortion clinic circumstances.

Sotomayor’s displeasure with the court docket’s current Texas ruling was evident at a digital look she made. “I can’t change Texas’ legislation, however you may,” she mentioned.

Justice Elena Kagan

Kagan additionally has repeatedly voted in favour of abortion rights in additional than 11 years as a justice. She can be arguably probably the most constant voice on the court docket arguing for the significance of adhering to precedents and may be anticipated to attempt to persuade her colleagues to not jettison constitutional protections for abortion.

Biden shakes hands with Court Associate Justice Elena Kagan
President Joe Biden greets Supreme Courtroom Affiliate Justice Elena Kagan at his State of the Union tackle on March 1 [Saul Loeb/ Pool via AP]

Kagan was within the majority when the court docket struck down the Texas and Louisiana restrictions on abortion clinics. Extra just lately, Kagan referred to as Texas’ new abortion legislation “patently unconstitutional” and a “clear, and certainly undisputed, battle with Roe and Casey”.

Kagan had already grappled with the problem of abortion earlier than changing into a justice. Whereas working within the Clinton White Home she was the co-author of a memo that urged the president for political causes to help a late-term abortion ban proposed by Republicans in Congress, as long as it contained an exception for the well being of the lady. Finally, President George W Bush signed the same late-term abortion ban and not using a well being exception. The Supreme Courtroom upheld it.

Justice Neil Gorsuch

Gorsuch has maybe the shortest report on abortion among the many 9 justices. He was within the majority permitting Texas’ restrictive abortion legislation to take impact. In dissent in 2020, he would have upheld Louisiana’s abortion clinic restrictions.

Associate Justice Neil Gorsuch stands during a group photo at the Supreme Court.
Justice Neil Gorsuch is an ‘originalist’ jurist who seeks to hew to the unique meanings of the phrases within the Structure [File: Erin Schaff/The New York Times via AP pool]

As an appeals court docket choose earlier than becoming a member of the Supreme Courtroom in 2017, Gorsuch dissented when his colleagues declined to rethink a ruling that blocked then-Utah Governor Gary Herbert from slicing off funding for the state department of Deliberate Parenthood. However Gorsuch insisted at his Senate affirmation listening to that he was involved about procedural points, not the subject material. “I don’t care if the case is about abortion or widgets or anything,” he mentioned.

Justice Brett Kavanaugh

Kavanaugh’s identify was added to President Donald Trump’s shortlist of Supreme Courtroom candidates shortly after he sided with the administration in a 2017 case involving abortion. Trump selected him for the court docket the next yr. As a justice, Kavanaugh dissented from the Louisiana determination and voted to permit the brand new Texas legislation to take impact, although he has taken a much less absolutist stance than a few of his conservative colleagues. Within the Louisiana case, for instance, Kavanaugh wrote that extra data was wanted about how the state’s restrictions on clinics would have an effect on medical doctors who present abortions and appeared to counsel his vote might change understanding that data.

Associate Justice Brett Kavanaugh stands during a group photo at the Supreme Court in Washington
A controversial nominee, Justice Brett Kavanaugh had assured Senator Susan Collins a lady’s proper to an abortion was ‘settled legislation’, however his views could have shifted now that he’s on the bench [File: Erin Schaff/The New York Times via AP pool]

Kavanaugh’s most in depth writing on abortion got here whereas he was a choose on the federal appeals court docket in Washington. The Trump administration had appealed a decrease court docket ruling ordering it to permit a pregnant 17-year-old immigrant in its custody to get an abortion. The administration’s coverage was to say no to assist these minors get abortions whereas in custody.

Kavanaugh was on a three-judge panel that postponed the abortion, arguing that officers needs to be given a restricted window to switch the minor out of presidency custody to the care of a sponsor. She might then acquire an abortion with out the federal government’s help. The total appeals court docket later reversed the choice, and {the teenager} obtained an abortion. Kavanaugh referred to as that call out-of-step with the “many majority opinions of the Supreme Courtroom which have repeatedly upheld cheap laws that don’t impose an undue burden on the abortion proper acknowledged by the Supreme Courtroom in Roe v. Wade”.

Kavanaugh was criticized by some conservatives for not going so far as a colleague, Choose Karen Henderson, who acknowledged unambiguously that an immigrant within the US illegally has no proper to an abortion. At his appeals court docket affirmation listening to, Kavanaugh dodged questions on his personal private beliefs on Roe v Wade.

Kavanaugh voted to permit the Texas legislation to enter impact in September, however throughout oral arguments earlier this month he appeared to have doubts about its novel construction and whether or not it will result in a spate of copycat legal guidelines on abortion and different rights protected by the Structure.

Supreme Court Associate Justice Amy Coney Barrett smiles at the end of a talk at the Ronald Reagan Presidential Library Foundation in Simi Valley, California.
Justice Amy Coney Barrett was applauded after she gave a chat on the Ronald Reagan Presidential Library in Simi Valley, California, on April 4, 2022 [Damian Dovarganes/AP Photo]

Justice Amy Coney Barrett

Barrett’s one public vote on the Supreme Courtroom regarding abortion was to permit the Texas “fetal heartbeat” legislation to take impact. She additionally forged two votes as an appeals court docket choose to rethink rulings that blocked Indiana abortion restrictions.

In 2016, shortly earlier than the election that will put Trump in workplace, she commented about how she thought abortion legislation would possibly change if Trump had the possibility to nominate justices. “I … don’t assume the core case – Roe’s core holding that, you understand, girls have a proper to an abortion – I don’t assume that will change,” mentioned Barrett, then a Notre Dame legislation professor. She mentioned limits on what she referred to as “very late-term abortions” and restrictions on abortion clinics can be extra more likely to be upheld.

Barrett has an extended report of non-public opposition to abortion rights, co-authoring a 1998 legislation evaluation article that mentioned abortion is “at all times immoral”. At her 2017 listening to to be an appeals court docket choose, Barrett mentioned in written testimony, “If I’m confirmed, my views on this or every other query could have no bearing on the discharge of my duties as a choose.”

Though Barrett allowed the Texas legislation to take impact, she joined Kavanaugh throughout oral arguments in elevating sceptical questions on its construction, asking about provisions of the legislation that drive suppliers to struggle lawsuits one after the other and, she mentioned, don’t permit their constitutional rights to be “totally aired”.

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