Constitutional Law

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The Roe v. Wade ruling finding a constitutional right to abortion was “pulled out of thin air,” according to four Alabama justices who used a special concurrence to urge the U.S. Supreme Court to overturn the opinion.

Despite their views, the four Alabama justices agreed with the court’s decision to toss a lawsuit seeking to hold an abortion clinic liable for the death of a 6-week-old fetus, report Law360 and AL.com.

The nine-member court tossed the suit because the plaintiff had failed to comply with a rule requiring a brief to set out the issues and argument, along with citation of relevant caselaw and statutes.

Justice Jay Mitchell wrote the Oct. 30 special concurrence, joined by Chief Justice Tom Parker and Justices Michael Bolin and Alisa Kelli Wise.

Mitchell said Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey have serious problems and are “due to be overruled.”

“First, the central holding of Roe—that there is a constitutional right to have an abortion based on a judicially created trimester framework—has no grounding in the text of the United States Constitution,” Mitchell wrote.

“That holding was pulled out of thin air by using a novel theory put forward only a few years earlier in Griswold v. Connecticut, … in which the United States Supreme Court identified a constitutional right of privacy based on ‘penumbras’ extending from the ‘emanations’ of five amendments in the Bill of Rights.

“Unfortunately, the court compounded its error in Casey, when it affirmed the holding of Roe and invented a new analytical framework based on a judicially created ‘undue burden’ standard.”

Roe and Casey “hamstring states as they seek to prevent human tragedy and suffering,” Mitchell wrote.

The concurrence comes as the Supreme Court now has a six-justice conservative majority.

President Donald Trump’s latest court pick, Justice Amy Coney Barrett, refused to express a view on Griswold during her confirmation hearing. The 1965 decision held that married couples have the right to use contraceptives in the privacy of their home.

See also:

ABAJournal.com: “Justice Thomas weighs in on ‘dismemberment abortions’ and the undue burden standard”

ABAJournal.com: “With Kennedy off the Supreme Court, will Roe v. Wade be overturned?”

ABAJournal.com: “Alabama governor signs abortion ban; which cases are headed to the Supreme Court?”

ABAJournal.com: “Judge overturns law that would close three of Alabama’s five abortion clinics”

ABAJournal.com: “Abortion law prompts more than 200 ABA members to protest plan to hold 2021 meeting in Atlanta”

ABAJournal.com: “Founder of online abortion-pill service says she won’t turn anyone away, despite FDA warning”

ABAJournal.com: “Jailed woman charged with endangering fetus drops suit seeking an abortion”