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Whatever misgivings individual citizens may harbor for application in their personal lives, most Americans now view these nonabortion issues as matters of personal choice. When the Supreme Court acted, none of those rights, like abortion, could have been construed as enjoying a strong basis in the “Nation’s history and traditions.” But public views and state statutes change with the decades. Last year, those numbers were 32%, 19% and 48%.Īlito takes pains to assert the draft decision won’t undermine court precedents creating rights for gay marriage, contraception and interracial marriage. In 1975, a Gallup Poll reported 21% favored legal abortions, 22% opposed it, and 54% said it should be legal in some circumstances. It is not the place of nine justices to invent new rights from penumbras, emanations or to borrow the words of Justice Scalia, the “mystical aphorisms of the fortune cookie.”Īmericans remain deeply divided but are not absolutists. The Constitution makes no mention of abortion and prohibitions go back many centuries in common law and statutes. Alito’s reasonable assertionĪlito’s draft reasonably asserts rights guaranteed by the Constitution must be either enumerated or “deeply rooted in this Nation’s history and traditions.” Had a majority upheld Roe and Casey-or healed flaws in their legal reasoning-many antiabortion folks would be screaming the Supreme Court was discredited just as pro-choice advocates are now claiming.