“Rowe’s advocates characterize the right to abortion as similar to the rights recognized in past decisions on issues such as intimate sexual relations, contraception and marriage,” wrote Judge Alito. because it destroys what these decisions call the “life of the fruit” and what the law before us describes as an “unborn human being.”
Judge Alito examines the precedents cited by Rowe and Casey to justify their defense against abortion. These include those on interracial marriages, the right of prisoners to marry, the right to live with relatives, the right to decide on the education of their children and the right not to be sterilized without consent.
He also cites two “Casey decisions”, Obergefell and Lawrence v. Texas in 2003, which repealed a Texas law that made gay sex a crime.
Judge Alito, a careful draftsman, then seems to have distinguished between the two sets of decisions.
“None of the other decisions cited by Rowe and Casey included the critical moral issue raised by abortion,” he wrote. “They are therefore inappropriate. They do not support the right to have an abortion, and likewise our conclusion that the Constitution does not provide such a right does not undermine them in any way. ”
Perhaps it is significant that this passage in the draft opinion is silent on whether its conclusion undermines the two post-Casey decisions on gay rights.
In general, Judge Alito wrote that he was wary of “trying to justify abortion by calling for a broader right to autonomy”, saying he “could license fundamental rights to use illegal drugs, prostitution and the like”.
Rowe v. Wade
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What is Rowe against Wade? Rowe v. Wade is a remarkable Supreme Court ruling that legalizes abortion in the United States. Decision 7-2 was announced on January 22, 1973. Judge Harry A. Blackman, a humble Republican from the Midwest and an advocate for the right to abortion, wrote the majority opinion.
What was the case? The decision overturned laws in many states that banned abortion, declaring that they could not ban the procedure before the fetus could survive outside the womb. This time, known as fetal viability, was about 28 weeks when Roe was decided. Today, most experts believe it is about 23 or 24 weeks.
What else did the case do? Rowe v. Wade created a framework for regulating abortion based on the trimester of pregnancy. During the first trimester, he allowed almost no regulations. In the second, it allows regulations to protect women’s health. In the third, it allows states to ban abortions, as long as exceptions are made to protect the life and health of the mother. In 1992, the court dropped this framework, while confirming Roe’s substantial ownership.
“None of these rights claim to be deeply rooted in history,” he added, which is also true of same-sex marriage.
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