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Since the ruling took effect in 1973, many liberal legal scholars have openly questioned the constitutionality of the Supreme Court’s Roe v. Wade decision which has been thrust back into the national spotlight after a leaked majority opinion suggested that the controversial abortion ruling is on the verge of being overturned.
Archibald Cox, who served as solicitor general for President John F. Kennedy, stated, “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice [Harry] Blackmun are part of the Constitution.”
Kermit Roosevelt, a professor at the University of Pennsylvania, wrote that “as an example of the practice of constitutional opinion writing” he believes that “Roe is a serious disappointment.”
“As a constitutional argument, Roe is barely coherent,” Roosevelt said. “The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment.”
Liberal political pundit Michael Kinsley also concluded that Roe v. Wade represented judicial “overreach.”
“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching,” Kinsley wrote. “I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives while cutting off a political process that was legalizing abortion state by state anyway.”
Demonstrators march down the streets after protesting outside of the U.S. Courthouse in response to a leaked draft of the Supreme Court’s opinion to overturn Roe v. Wade, in Los Angeles, Tuesday, March 3, 2022. (AP Photo/Ringo H.W. Chiu)
In a Twitter thread posted by Grabien founder Tom Elliott, he provided several examples of liberals criticizing the law including former Supreme Court Justice Ruth Bader Ginsburg who once called it a “heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”
“I strongly support a woman’s right to choose but Roe vs. Wade was a disaster,” Constitutional lawyer and Harvard Professor Alan Dershowitz told Business Insider in 2016, adding that it was the “wrong place” for the Supreme Court to go.
Demonstrators protest outside of the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. (AP Photo/Jose Luis Magana)
Dershowitz, a Democrat, has also said there’s no “clear governing constitutional principle” in Roe v. Wade.
Earlier this week, Politico reported that a draft of an opinion circulating in the Supreme Court shows Justice Samuel Alito explaining that the majority of justices on the court have decided to overturn Roe v. Wade which would send the abortion debate to the state level going forward.
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. (AP Photo/Anna Johnson)
The Supreme Court confirmed the authenticity of the document but noted it is simply a draft and that the court has not issued a final decision on the matter.
“Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” the court said.
Chief Justice John Roberts, in his own statement accompanying the court’s press release, announced that he has called upon the Marshal of the Court to investigate the situation and find the source who leaked the document to Politico. Roberts also spoke out against the notion that the leak could succeed as a political maneuver to influence the outcome of the case.
Fox News’ Ronn Blitzer contributed to this report.