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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.
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