Friday, January 28, 2022

Judges’ Opinions on Abortion in Their Own Words and Voices | AP News

WASHINGTON (AP) – When the Supreme Court hears arguments on Wednesday about whether Mississippi can ban abortion after 15 weeks, judges will focus on the issue that dominated that deadline. Not only is there a Mississippi call to overturn Roe’s decision against Wade, but judges are already considering a Texas law banning abortion in about six weeks, and written to make it difficult to file lawsuits against him.

Judges will not write from scratch as they consider the future of abortion rights in the United States. They have talked a lot about abortion over the years – in their opinions, voting, Senate testimony, and other documents. Only one, Clarence Thomas, has openly called for the cancellation of Rowe and Planned Parenthood v. Casey, two cases that established and confirmed a woman’s right to have an abortion.

Examples of their comments:


Roberts voted to uphold restrictions in two major abortion cases, most in 2007 to uphold a ban on what opponents call “partial abortion” and to reject in 2016, when a court overturned Texas restrictions on abortion clinics in a case called “The Health of the Whole Woman.” But when an almost identical Louisiana law went to court in 2020, Roberts voted against it and wrote an opinion controlling the outcome of the case and overturning the Louisiana law. The Chief Justice said that he still believes the 2016 case “was handled incorrectly,” but the question was “whether to stick to it when deciding on the present case.”

Roberts’ views on when to drop court precedent may determine how far he is willing to go in the Mississippi case. At his 2005 confirmation hearing, he said that the reversal of the precedent “is a shock to the legal system,” which depends in part on stability and impartiality. According to him, it is not enough to think that the previous case was taken incorrectly. Dismissal requires consideration of “these other factors, such as long-standing expectations, such as the legitimacy of the Court, such as whether a particular precedent is workable or not, whether the precedent has been destroyed by subsequent events,” Roberts said at the time.

At the same hearing, Roberts was asked to explain his presence in a legal memo filed by the George W. Bush administration, which said that Roe’s conclusion about the right to abortion “is not supported by the text, structure or history of the Constitution.” “Roberts responded that the note reflects the administration’s point of view.


Thomas voted to overturn Rowe in 1992, during his first term in court, when he disagreed in Planned Paternity v. Casey. Since then, he has repeatedly called for Rowe and Casey to turn over.

In 2000, he expressed his opposition when a court overturned Nebraska’s ban on “partial abortion.” Referring to the court ruling in the Roe case, he wrote: “In 1973, this court overturned the Texas Legislature Act that had been in force since 1857, thereby declaring abortion laws in dozens of states unconstitutional. As some of my colleagues in the Court, past and present, have ably demonstrated, this decision was grossly flawed. Abortion is a unique act that stops a woman from exercising control over her body, depending on the views of the person, human life or potential human life. Nothing in our Federal Constitution deprives the people of that country of the right to determine whether the consequences of abortion on the fetus and society outweigh the burden of an unwanted pregnancy on the mother. While the state can authorize abortion, nothing in the Constitution requires the state to do so. ”


Breuer was the lead author of two abortion rights majority judgments in 2000 and 2016. He never voted to support the abortion restriction, but he admitted there was controversy over abortion.

Millions of Americans believe that “abortion is akin to the death of an innocent child,” while millions of others “fear that a banning abortion law will condemn many American women to a life without dignity,” he wrote in the Nebraska case. 21 years ago, calling these views “practically irreconcilable.” Nonetheless, Breuer wrote, since the Constitution guarantees “fundamental liberty of the individual” and must regulate even when there is great division in a country, “this Court has determined, and then redefined for a generation, that the Constitution offers basic protection. the right to choose a woman. “


Alito has a long track record of opposing abortion rights voices and letters as a lawyer and formerly a government lawyer.

Alito has voted to uphold all abortion laws the court has considered since its approval in 2006, joining the majority in support of the federal “partial birth” abortion law and disagreeing with the 2016 and 2020 cases.

As a federal appeals court judge, he voted to uphold a number of restrictions on abortion in Pennsylvania, including requiring a woman to notify her spouse before having an abortion. Ultimately, the Supreme Court overturned the notification rule in the Casey case and upheld the right to abortion in 1992 with 5–4 votes.

While working for the Reagan administration in 1985, Alito wrote in a memo that the government must publicly declare in a pending abortion case “that we disagree with Rowe v. Wade.” Around the same time, when applying for a promotion, Alito noted that he was “particularly proud” of his work, arguing that “the constitution does not protect the right to abortion.”


Sotomayor joined the court in 2009 with little or no data on abortion issues, but has since voted repeatedly for the right to abortion. Recently, when the court allowed the prohibitive Texas abortion law To take effect, Sotomayor accused her colleagues of burying their “heads in the sand.” She was mostly in abortion clinics in Texas and Louisiana.

Sotomayor’s discontent with the recent Texas court ruling was evident in her virtual appearance. “I can’t change Texas law, but you can,” she said.


Kagan has also voted repeatedly for the right to abortion in his more than 11 years as a judge. She is also arguably the most consistent voice in court arguing for the importance of respecting precedent, and she can be expected to try to persuade her colleagues not to abandon the constitutional protection of abortion.

Kagan was in the majority when the court overturned Texas and Louisiana restrictions on abortion clinics. More recently, Kagan called the new Texas abortion law “clearly unconstitutional” and “a clear and truly undeniable conflict with Rowe and Casey.”

Kagan had already struggled with the abortion problem before becoming a judge. While serving in the Clinton White House, she co-authored a memorandum that, for political reasons, asked the president to support the late-term abortion ban proposed by Republicans in Congress, provided it contained an exception for women’s health. … In the end, President George W. Bush signed a similar ban on late abortion with no health-related exceptions. The Supreme Court upheld this.


Gorsach has perhaps the shortest abortion record among nine judges. He was the majority to have allowed the Texas Restrictive Abortion Act to come into effect. If disagreed in 2020, he would support the restrictions on the Louisiana abortion clinic. As an appellate judge prior to joining the Supreme Court in 2017, Gorsuch disagreed when his colleagues refused to review a ruling that prevented Utah Governor Gary Herbert from ending funding for the government’s Planned Parenthood chapter. But Gorsuch insisted on hearing a Senate statement that he was concerned with procedural issues, not the subject. “I don’t care if it’s about abortion or widgets or anything else,” he said.


Cavanaugh’s name was added to former President Donald Trump’s Supreme Court nomination list shortly after he sided with the administration in the 2017 abortion case. Trump chose him to go to court the following year. As a judge, Cavanaugh disagreed with Louisiana’s decision and voted to have the new Texas law go into effect, although he took a less absolutist stance than some of his conservative counterparts. In the Louisiana case, for example, Cavanaugh wrote that more information was needed on how the state’s restrictions on clinics would affect abortion doctors, and seemed to suggest that his voice might change with this information.

Cavanaugh’s most extensive work on abortion was written while he was a judge at the federal court of appeals in Washington. The Trump administration has appealed a lower court ruling that allowed a 17-year-old pregnant immigrant woman in custody to have an abortion. The administration’s policy was to refuse to provide abortion assistance to minors while in custody.

Cavanaugh served on a three-judge panel that postponed the abortion, arguing that officials should be given limited time to transfer a minor from public care to a sponsor. Then she could have an abortion without the help of the government. The court of appeal later overturned this decision, and the teenager had an abortion. Kavanaugh called the ruling incompatible with “many of the views of the Supreme Court majority, which have repeatedly upheld reasonable rules that do not unduly burden the Supreme Court’s right to abortion in Roe v. Wade.”

Some conservatives criticized Cavanaugh for not going as far as his colleague, Judge Karen Henderson, who stated unequivocally that an immigrant to the United States was illegally not eligible for an abortion. At the appellate confirmation hearing, Cavanaugh avoided asking questions about his personal convictions in Roe v. Wade.

Cavanaugh voted to have the Texas law go into effect in September, but during an oral debate earlier this month, he appeared to have doubts about its new structure and whether it would lead to a flood of copycat laws on abortion and others. rights protected by the Constitution. …


Barrett’s only public Supreme Court vote on abortion was to allow the Texas Fetal Heart Beat Act to go into effect. She also cast two votes as an appellate judge to review rulings that blocked Indiana’s abortion restrictions.

In 2016, shortly before the election that would bring Trump to power, she commented on how she thought the abortion law could change if Trump had the ability to appoint judges. “I… don’t think the main thing – Roe’s main point of view that women have the right to have an abortion – I don’t think that will change,” said Barrett, then a professor of law at Notre Dame. She said that restrictions on what she calls “very late abortion” and restrictions on abortion are likely to remain.

Barrett also has a long track record of personally opposing abortion rights. co-authored a 1998 review article which stated that abortion is “always immoral.” At a 2017 hearing as an appellate judge, Barrett stated in her affidavit, “If confirmed, my views on this or any other matter will have nothing to do with my duties as a judge.”

Although Barrett allowed the Texas law to go into effect, she joined Cavanaugh in oral disputes, raising skeptical questions about its structure, asking about the provisions of the law that force suppliers to fight lawsuits one by one and, she says, does not allow their constitutional norms. the right to be “fully broadcast”.

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