Flashback: Progressive legal experts call Roe v. Wade constitutionally ‘indefensible’
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The social media firestorm sparked by a leaked draft from the Supreme Court suggesting an impending reversal of Roe v. Wade caused some on Twitter to point out that many prominent progressives and constitutional experts have openly questioned the validity of the controversial 1973 ruling.
In a Twitter thread posted by Grabien founder Tom Elliott, the journalist provides several examples of liberals criticizing the law including former Supreme Court Justice Ruth Bader Ginsburg who once called it a “”heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”
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“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found,” Harvard Professor and frequent MSNBC guest Laurence Tribe once wrote.
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible,” Edward Lazarus, former clerk to Harry Blackmun who was widely viewed as one of the most liberal justices on the court during his time served, wrote. “I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
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Lazarus also wrote that “as a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
John Hart Ely, a professor at Yale Law School, Harvard Law School, and Stanford Law School, wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
Brookings Institute Senior Fellow Benjamin Wittes referred to Roe as “a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply” and progressive legal scholar Cass Sunstein has stated that “as a constitutional matter” he believes “Roe was way overreached.”
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In a leaked majority opinion released by Politico on Monday night, Justice Samuel Alito wrote, “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The draft leak was written in early February. It was not immediately clear if it has been rewritten or revised. The Court has declined to verify or disavow the document. Analysts have suggested the leak may represent an attempt to pressure a Supreme Court justice to change his or her vote on the pivotal case.
Fox News’ Tyler O’Neil contributed to this report