Justice Samuel Alito's draft US Supreme Court ruling that would overturn the landmark 1973 Roe v. Wade decision legalizing abortion nationwide hinges on a contested historical review of restrictions on the procedure enacted during the 19th century, Lawrence Hurley reported for Reuters.
Photo Insert: Justice Samuel Alito
Lawyers and scholars backing abortion rights have criticized Alito's reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman's constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.
Conservatives who oppose abortion rights have praised Alito's opinion and argued that the Roe decision itself was based on a faulty reading of history.
The unprecedented leak this week of the draft before the nine justices have finalized their decision - due by the end of June - has given critics a chance to scrutinize a work in progress, hoping other justices will have second thoughts about joining Alito, thus changing the outcome of the momentous case.
Alito's draft would uphold a Republican-backed Mississippi law - struck down by lower courts as a violation of the Roe precedent - banning abortions at 15 weeks of pregnancy.
Tracy Thomas, a professor at the University of Akron School of Law in Ohio, said Alito selectively cited history as presented by anti-abortion activists. "We do have to interpret history, but we also have to see the nuance, and he is missing the nuance," said Thomas.
A brief filed in the case by groups representing historians backing abortion rights said that in 1868 "nearly half of the states continued either not to prohibit abortion entirely or to impose lesser punishments for abortions prior to quickening."
His reasoning was that a right to abortion was not "deeply rooted in this nation's history." Alito relied upon a reading of state laws on the books in 1868 when the US Constitution's 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the US Civil War and the end of slavery.
The Roe ruling found that the right to abortion arises from the 14th Amendment's protection of due process rights, which the Supreme Court has found safeguards a person's right to privacy.
To Alito, the scope of 14th Amendment rights must be considered in the context of the times in which it was devised. Alito wrote in his draft that when the 14th Amendment was ratified to protect the rights of former slaves, 28 of the then-37 US states "had enacted statutes making abortion a crime" even early in a pregnancy.
This shows, Alito argued, that there was no understanding at the time of any right to abortion.