SMU constitutional law professor on leaked Roe v. Wade draft opinion: "This is a public relations disaster for the Supreme Court"
DALLAS (CBSDFW.COM) - Chief Justice John Roberts confirmed Tuesday that the leaked draft opinion indicating the U.S. Supreme may overturn Roe vs. Wade is authentic and announced he has ordered an investigation into who gave it to the publication Politico.
The 1973 decision by the high court established a nationwide constitutional right to an abortion.
SMU Constitutional Law Professor Dale Carpenter said Tuesday nothing like this has ever happened. "This is a public relations disaster for the Supreme Court."
Carpenter said whoever leaked the draft opinion on Roe Vs. Wade by Justice Samuel Alito "committed an extraordinary breach of confidentiality" in the nation's highest court.
The ruling is not final, and Carpenter emphasized that Justices must have an internal way to fully discuss cases that's kept private. "They don't want to feel pressured by the public to adopt a certain position or be dug into a certain position Just because early on they had a certain view about the case. They may have second thoughts."
The key questions now are will the Supreme Court's final ruling on Roe vs. Wade be the same as the draft opinion that was made public and when exactly will it be released, this summer or sooner?
In the draft opinion, Alito said for the majority that "...Roe was egregiously wrong from the start... The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision..."
Carpenter said that is a key finding. "If the majority is held, that probably by the end of June, the Supreme Court will declare that the there is no longer a fundamental constitutional right to abortion."
U.S. Representative Pat Fallon, R-4th Congressional District, reacted to the draft ruling Tuesday. "I was surprised, pleasantly surprised when I saw the draft, about the opinion itself, but really horrified that it was leaked."
Democrats in Congress say they want to codify Roe vs. Wade and turn the ruling into a federal law.
Fallon said he would not support that legislation and that he agrees with the draft opinion. "The 10th amendment makes it very clear that if something's not mentioned in the Constitution, it's reserved to the States. And clearly abortion was never mentioned in the constitution. It was a state issue, and it should have remained a state issue."
U.S. Representative Eddie Bernice Johnson, D-Dallas said Tuesday she was disappointed the draft opinion was leaked but focused more on Justice Alito's writing.
"There is a Constitutional protection that guarantees us a right to privacy and freedom of religion. It's only women who have a constitutional conflict there. There is not a single decision that a male has to go to the public to get a health decision. And just based on that, I think that is wrong. I think we're headed down the wrong path."
Professor Carpenter said any legislation that is passed, whether by Congress or any of the states, including Texas, could be challenged in court, and end up back at the Supreme Court.