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No one really knows what that burden is, so states bring case after case to contest it. Roe has continued to inspire a mass of litigation as modified by Casey’s “undue burden” test. Roe also stands apart on what Justice Alito’s opinion calls “workability” grounds. The Supreme Court isn’t going to invalidate those unions and disrupt so many lives. Hundreds of thousands of Americans are married to people of the same sex. In the marriage cases, there are also what the Court calls “reliance interests” at stake. And judges are ill equipped to draw the distinctions in abortion policy that a plurality of Americans say they want. Whatever the High Court thought it was doing in Roe and again in Casey, it didn’t come close to settling the debate. Last year the figures were 32% always legal, 19% never, and 48% sometimes.
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In 1975 Gallup found that 21% of Americans said abortion should be always legal, 22% never legal, and 54% legal only in certain circumstances. As Justice Alito’s draft opinion points out, even Roe acknowledged that the state has a legitimate interest in protecting “potential life.” There’s a reason that thousands of Americans have spent nearly 50 years enduring the January cold in Washington at the annual March for Life.
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That stands in contrast to abortion, which remains a contested moral and political issue. As for Loving, Gallup says 94% support black-white marriages. That’s up from 58% the year Obergefell came down. On gay marriage, 70% of people told Gallup last year that the law should treat such unions no differently than traditional ones. A Gallup poll in 2019 found that 92% of Americans believed using birth control to be “morally acceptable.” That was up three points since 2012, and it included 90% of the respondents who identified as conservative or very conservative. Yet unlike Roe, both of those decisions have established themselves as durable precedents with broad public acceptance.
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Opinion in Obergefell asserted that the Constitution guarantees rights for free Americans to “define and express their identity.” Justiceĭissent compared that line to “the mystical aphorisms of the fortune cookie.” Griswold is where the Court said the Bill of Rights has “emanations” that create “penumbras,” a phrase long lampooned by the right. It’s true that those past decisions have been criticized by conservatives. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the draft says. Casey, from cases on unrelated social topics. The leaked opinion is explicit about distinguishing Roe and its 1992 legal revision, Planned Parenthood v. The correct answer is none of the above, as Justice Samuel Alito’s draft takes pains to emphasize.