Foreign
In Their Words: US Supreme Court Justices’ Records On Abortion
A 6-3 conservative majority on the US’s top court appears prepared to reverse nearly five decades of precedents allowing abortion.
When the Supreme Court heard arguments in a major abortion case from Mississippi in December, it was clear to observers that there was substantial support among the court’s conservative majority for overruling two landmark decisions that established and reaffirmed a woman’s right to an abortion.
So when a draft of the opinion in the case written by Justice Samuel Alito was leaked late Monday, the potential outcome — the overruling of Roe v Wade and Planned Parenthood v Casey — was not the surprise. It was that the draft was leaked at all.
Even before arguments in the current case, however, the justices themselves have had a lot to say about abortion over the years — in opinions, votes, Senate confirmation testimony and elsewhere. One justice, Clarence Thomas, has openly called for overruling Roe and Casey.
A sampling of their comments:
Chief Justice John Roberts
Roberts has voted to uphold restrictions in two major abortion cases, in the majority in 2007 to uphold a ban on a method of abortion opponents call “partial-birth abortion” and in dissent in 2016 when the court struck down Texas restrictions on abortion clinics in a case called Whole Woman’s Health.
But when a virtually identical law from Louisiana came before the court in 2020, Roberts voted against it and wrote the opinion controlling the outcome of the case and striking down the Louisiana law. The chief justice said he continues to believe that the 2016 case “was wrongly decided” but that the question was “whether to adhere to it in deciding the present case”.
Roberts’ views on when to break with court precedent could determine how far he is willing to go in the Mississippi case currently before the court. At his 2005 confirmation hearing, he said overturning precedent “is a jolt to the legal system”, which depends in part on stability and even-handedness. Thinking that an earlier case was wrongly decided is not enough, he said. Overturning a case requires looking “at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments”, Roberts said then.
In the same hearing, Roberts was asked to explain his presence on a legal brief filed by the George HW Bush administration that said Roe’s conclusion that there is a right to abortion has “no support in the text, structure, or history of the Constitution”. Roberts responded that the brief reflected the administration’s views.
Justice Clarence Thomas
Thomas voted to overturn Roe in 1992, in his first term on the court, when he was a dissenter in Planned Parenthood v. Casey. He has repeatedly called for Roe and Casey to be overturned since.
In 2000, he wrote in dissent when the court struck down Nebraska’s ban on “partial-birth abortion”.
Recounting the court’s decision in Roe, he wrote: “In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong. Abortion is a unique act, in which a woman’s exercise of control over her own body ends, depending on one’s view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.”
Justice Stephen Breyer
Breyer has been the lead author of two court majorities in defence of abortion rights, in 2000 and 2016. He has never voted to sustain an abortion restriction, but he has acknowledged the controversy over abortion.
Millions of Americans believe “that an abortion is akin to causing the death of an innocent child”, while millions of others “fear that a law that forbids abortion would condemn many American women to lives that lack dignity”, he wrote in the Nebraska case 21 years ago, calling those views “virtually irreconcilable”. Still, Breyer wrote, because the Constitution guarantees “fundamental individual liberty” and must govern even when there are strong divisions in the country, “this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.”
Justice Samuel Alito
Alito has a long track record of votes and writings opposing abortion rights, as a jurist and, earlier, a government lawyer.
Alito has voted to uphold every abortion law the court has considered since his 2006 confirmation, joining a majority to uphold the federal “partial-birth” abortion law, and dissenting in the 2016 and 2020 cases.
As a federal appeals court judge, he voted to uphold a series of Pennsylvania abortion restrictions, including requiring a woman to notify her spouse before obtaining an abortion. The Supreme Court ultimately struck down the notification rule in Casey and reaffirmed the abortion right in 1992 by a 5-4 vote.
Working for the Reagan administration in 1985, Alito wrote in a memo that the government should say publicly in a pending abortion case “that we disagree with Roe v. Wade”. About the same time, applying for a promotion, Alito noted he was “particularly proud” of his work arguing “that the Constitution does not protect a right to an abortion”.
Justice Sonia Sotomayor
Sotomayor joined the court in 2009 with virtually no record on abortion issues but has voted repeatedly in favour of abortion rights since then. Recently, when the court allowed Texas’ restrictive abortion law to take effect, Sotomayor accused her colleagues of burying “their heads in the sand”. She was in the majority in the Texas and Louisiana abortion clinic cases.
Sotomayor’s displeasure with the court’s recent Texas ruling was evident at a virtual appearance she made. “I can’t change Texas’ law, but you can,” she said.
Justice Elena Kagan
Kagan also has repeatedly voted in favour of abortion rights in more than 11 years as a justice. She is also arguably the most consistent voice on the court arguing for the importance of adhering to precedents and can be expected to try to persuade her colleagues not to jettison constitutional protections for abortion.
Kagan was in the majority when the court struck down the Texas and Louisiana restrictions on abortion clinics. More recently, Kagan called Texas’ new abortion law “patently unconstitutional” and a “clear, and indeed undisputed, conflict with Roe and Casey”.
Kagan had already grappled with the issue of abortion before becoming a justice. While working in the Clinton White House she was the co-author of a memo that urged the president for political reasons to support a late-term abortion ban proposed by Republicans in Congress, so long as it contained an exception for the health of the woman. Ultimately, President George W Bush signed a similar late-term abortion ban without a health exception. The Supreme Court upheld it.
Justice Neil Gorsuch
Gorsuch has perhaps the shortest record on abortion among the nine justices. He was in the majority allowing Texas’ restrictive abortion law to take effect. In dissent in 2020, he would have upheld Louisiana’s abortion clinic restrictions.
Justice Neil Gorsuch is an ‘originalist’ jurist who seeks to hew to the original meanings of the words in the Constitution As an appeals court judge before joining the Supreme Court in 2017, Gorsuch dissented when his colleagues declined to reconsider a ruling that blocked then-Utah Governor Gary Herbert from cutting off funding for the state branch of Planned Parenthood. But Gorsuch insisted at his Senate confirmation hearing that he was concerned about procedural issues, not the subject matter. “I do not care if the case is about abortion or widgets or anything else,” he said.
Justice Brett Kavanaugh
Kavanaugh’s name was added to President Donald Trump’s shortlist of Supreme Court candidates shortly after he sided with the administration in a 2017 case involving abortion. Trump chose him for the court the following year. As a justice, Kavanaugh dissented from the Louisiana decision and voted to allow the new Texas law to take effect, though he has taken a less absolutist stance than some of his conservative colleagues. In the Louisiana case, for example, Kavanaugh wrote that more information was needed about how the state’s restrictions on clinics would affect doctors who provide abortions and seemed to suggest his vote could change knowing that information.
Kavanaugh’s most extensive writing on abortion came while he was a judge on the federal appeals court in Washington. The Trump administration had appealed a lower court ruling ordering it to allow a pregnant 17-year-old immigrant in its custody to get an abortion. The administration’s policy was to decline to help those minors get abortions while in custody.
Kavanaugh was on a three-judge panel that postponed the abortion, arguing that officials should be given a limited window to transfer the minor out of government custody to the care of a sponsor. She could then obtain an abortion without the government’s assistance. The full appeals court later reversed the decision, and the teenager obtained an abortion. Kavanaugh called that decision out-of-step with the “many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade”.
Kavanaugh was criticized by some conservatives for not going as far as a colleague, Judge Karen Henderson, who stated unambiguously that an immigrant in the US illegally has no right to an abortion. At his appeals court confirmation hearing, Kavanaugh dodged questions on his own personal beliefs on Roe v Wade.
Kavanaugh voted to allow the Texas law to go into effect in September, but during oral arguments earlier this month he appeared to have doubts about its novel structure and whether it would lead to a spate of copycat laws on abortion and other rights protected by the Constitution.
Justice Amy Coney Barrett
Barrett’s one public vote on the Supreme Court concerning abortion was to allow the Texas “fetal heartbeat” law to take effect. She also cast two votes as an appeals court judge to reconsider rulings that blocked Indiana abortion restrictions.
In 2016, shortly before the election that would put Trump in office, she commented about how she thought abortion law might change if Trump had the chance to appoint justices. “I … don’t think the core case – Roe’s core holding that, you know, women have a right to an abortion – I don’t think that would change,” said Barrett, then a Notre Dame law professor. She said limits on what she called “very late-term abortions” and restrictions on abortion clinics would be more likely to be upheld.
Barrett has a long record of personal opposition to abortion rights, co-authoring a 1998 law review article that said abortion is “always immoral”. At her 2017 hearing to be an appeals court judge, Barrett said in written testimony, “If I am confirmed, my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
Although Barrett allowed the Texas law to take effect, she joined Kavanaugh during oral arguments in raising sceptical questions about its structure, asking about provisions of the law that force providers to fight lawsuits one by one and, she said, do not allow their constitutional rights to be “fully aired”.
Dozens of Palestinians killed in overnight Israeli strikes in central and south Gaza as Red Sea tensions rise.
Here’s how things stand on Monday, January 15, 2024:
Latest updates and human impact
- Israeli attacks continue unabated overnight killing and wounding dozens of civilians in central and southern Gaza. At least 22 people were killed and a large number injured as a result of Israeli forces targeting al-Thalatheni Street in the central Gaza Strip.
- Yemen’s Houthi rebels fired an antiship cruise missile toward an American destroyer in the Red Sea, which was shot down by a US fighter jet, announced US Central Command (CENTCOM) on X.
- This was the first US-acknowledged Houthi attack since the US strikes on Yemen on Friday.
- Hamas released a 37-second video showing three Israeli captives held in Gaza on Sunday, saying they would reveal the fate of the captives on Monday and urging the Israeli government to stop the offensive.
- The Israeli military says it has shifted to a new phase of the war focused on the southern end of Gaza, where almost 2 million internally displaced Palestinians are running out of safe spaces to shelter.
- The Gaza Ministry of Health has said almost 24,000 people have been killed in the Israeli offensive. More than 60,000 people have been wounded in 100 days of war.
Diplomacy
- Israeli Prime Minister Benjamin Netanyahu said on Sunday that his country will pursue its war against Hamas until victory and will not be stopped by anyone, including the International Court of Justice (ICJ).
- The White House said on Sunday that “it’s the right time” for Israel to scale back its military offensive in the Gaza Strip.
- Egypt’s State Information Service (SIS) said in a statement on Sunday that one of the biggest obstacles to the timely delivery of sufficient aid to Gaza was Israeli inspection of the aid. The statement came after Israel blamed Cairo for the delay in aid delivery to Gaza during its defence at the ICJ.
- US Secretary of State Antony Blinken posted on X on Monday, calling for the release of the remaining captives held in Gaza on the 100th day since they were taken by Hamas. He did not mention the Palestinian casualties.
- Australia’s Foreign Minister Penny Wong, who described herself as a “friend of Israel” to the press, will travel to Jordan, Israel, the occupied Palestinian Territories and the United Arab Emirates this week, her office said on Monday.
West Bank raids and violence
- Israeli forces arrested 25 students staging a sit-in in protest against high tuition fees at An-Najah University in Nablus. Al Jazeera’s Hamdah Salhut reported that the protesting students received a text message from Israeli forces telling them to “surrender now”.
- Israeli forces have reportedly raided the family home of Nael al-Barghouti, the longest-serving Palestinian prisoner, in the village of Kobar, in Ramallah, in the occupied West Bank.
- The Israeli army said on Friday that it killed three Palestinian men who infiltrated a West Bank settlement and fired upon soldiers.
- The Israeli military killed two Palestinians after accusing them of ramming their car through a checkpoint near Hebron.
- Local sources reported that Israeli forces bulldozed two Palestinian-owned houses during a Sunday midnight raid in the city of Qalqilya, Palestinian news agency Wafa reported.
- Armed Israeli settlers broke into the village of Burin, south of Nablus, and attacked Palestinian residents’ houses and properties after midnight on Sunday, Wafa reported.
- “Violent raids and arrests have become part of the fabric of daily life in the occupied West Bank,” Al Jazeera’s Mohammed Jamjoom, reporting from Ramallah in the occupied West Bank, said. At least 347 Palestinians have been killed and thousands have been arrested since October 7.
Flames and smoke billow during Israeli attacks against Gaza on October 9, 2023
Human Rights Watch terms Israeli Defence Minister Yoav Gallant’s call for a ‘complete siege’ on Gaza a ‘war crime’.
The Hamas movement has threatened to kill an Israeli hostage every time Israel bombs a Palestinian home without warning as Israel mobilised some 300,000 reservists and imposed a total blockade of the Gaza Strip, denying the enclave’s millions of residents access to food, water and fuel.
The warning from Hamas came on Monday as the death toll from the armed group’s surprise weekend attack climbed to 900 in Israel and revenge attacks by Israeli forces on the besieged Gaza Strip killed more than 700 people and left some 3,700 others wounded.
Residential apartment blocks, hospitals, schools and a mosque have been among the sites attacked by Israeli fighter jets, artillery and drones, according to media reports and witnesses.
Hamas spokesperson Abu Ubaida issued the threat to kill Israelis from the dozens held captive by the armed group. He said an Israeli hostage would be killed for every Israeli bombing of a civilian house without warning.
Israeli Foreign Minister Eli Cohen said more than 100 people were taken captive by Hamas during the deadly cross-border incursion over the weekend.
As Israeli forces conducted intense retaliatory attacks on Gaza on Monday, Israel’s Defence Minister Yoav Gallant drew international condemnation by announcing a total blockade of the densely populated and besieged enclave, which is home to 2.3 million people.
Gallant said Israel would impose a “complete siege” on Gaza. “No electricity, no food, no water, no gas – it’s all closed.”
United Nations Secretary-General Antonio Guterres said he was “deeply distressed” by the siege announcement and warned that Gaza’s already dire humanitarian situation will now “only deteriorate exponentially”.
Guterres also said some 137,000 people were taking shelter with the UN Relief and Works Agency for Palestinian Refugees (UNRWA) at schools across Gaza.
UNRWA said on Tuesday that almost 190,000 people have been displaced in Gaza amid the Israeli attacks and the figure is expected to grow further as the violence intensifies.
Nearly half a million people have also not received food rations this week in Gaza as UN food distribution centres have been forced to remain closed amid the Israeli onslaught, UNRWA said.
Human Rights Watch said Israel’s total blockade on the necessities of life for everyday people in Gaza was a war crime.
“Defense Minister Gallant’s statements are abhorrent,” Omar Shakir, Israel and Palestine director at Human Rights Watch, said in a statement.
“Depriving the population in an occupied territory of food and electricity is collective punishment, which is a war crime, as is using starvation as a weapon of war. The International Criminal Court should take note of this call to commit a war crime,” he said.
Abhorrent. This is a call to commit a war crime by @yoavgallant. The @IntlCrimCourt should take note.
Quote by @OmarSShakir ⤵️ https://t.co/kKVo6YtpI1 pic.twitter.com/neHQMwnXVn
— Human Rights Watch (@hrw) October 9, 2023
Shakir also condemned the threat by Hamas to kill hostages, warning that such action was also a war crime.
“All hostages should be safely released to their families,” he said.
Grotesque. These threatened acts would amount to flagrant war crimes by Hamas’ armed wing. The @IntlCrimCourt will be watching.
Quote from @OmarSShakir ⤵️ https://t.co/FuNtvHe0YG pic.twitter.com/6cnHODLWyZ
— Human Rights Watch (@hrw) October 9, 2023
On the diplomatic front, Egyptian President Abdel Fattah el-Sisi and his Turkish counterpart Recep Tayyip Erdogan called on Hamas and Israel to immediately end violence and protect civilians, the Egyptian presidency said.
Erdogan urged Israel against “indiscriminately” attacking civilians and delivered measured criticism of Hamas, urging both sides to respect the “ethics” of war.
The United Kingdom, French, German, Italian and US governments issued a joint statement on Monday recognising the “legitimate aspirations” of the Palestinian people and supporting equal measures of justice and freedom for Israelis and Palestinians alike.
But the prospect that fighting could spread also alarmed the region and the world.
Lebanese armed group Hezbollah fired rockets into northern Israel in response to at least three of its members being killed in Israeli shelling of Lebanon.
Israel said one of its deputy commanders was also killed in an earlier cross-border raid from Lebanon.
US President Joe Biden holds a bilateral meeting with Israeli Prime Minister Benjamin Netanyahu on the sidelines of the 78th United Nations General Assembly in New York City, the US, September 20, 2023
Social media users, including journalists and observers, are calling out what they call a ‘double standard’.
After Saturday’s surprise attack by the Palestinian group Hamas on Israel, Ukrainian President Volodymyr Zelenskyy took to the social media platform X to offer “condolences go out to everyone who lost relatives or close ones in the terrorist attack”.
He also stated, “Israel’s right to self-defence is unquestionable.”
Many world leaders, including US President Joe Biden and UK Prime Minister Rishi Sunak, shared similar sentiments.
The world is seeing appalling images.
Thousands of rockets raining down on Israeli cities. Hamas terrorists killing not only Israeli soldiers, but civilians on the streets and in their homes.
It’s unconscionable. Israel has a right to defend itself – full stop.
— President Biden (@POTUS) October 7, 2023
European Commission President Ursula von der Leyen stated, “Israel has the right to defend itself – today and in the days to come. The European Union stands with Israel.”
Accusations of Western ‘double standards’
Some social media users have criticised these statements, saying they highlight a double standard.
The world is seeing appalling images.
Thousands of rockets raining down on Israeli cities. Hamas terrorists killing not only Israeli soldiers, but civilians on the streets and in their homes.
It’s unconscionable. Israel has a right to defend itself – full stop.
— President Biden (@POTUS) October 7, 2023
Ukraine’s right to defend itself is praised by most international leaders while Russia’s invasion is condemned, but commentators said the same cannot be said about Israel’s occupation of the West Bank and Gaza.
Aaron Bastani, a leftist British journalist, said on X that there’s a “clear double standard in endorsing terrorism against civilian targets in Ukraine … and condemning it by Palestinians”.
Many users said Western diplomats and media support the Ukrainians who defend their land, but label the Palestinians fighting against Israel as “terrorists”.
https://twitter.com/KhaledBeydoun/status/1710787817415082349?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1710787817415082349%7Ctwgr%5E6acf829869e993177f32aa38aa48c02f38cb7f61%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.aljazeera.com%2Fnews%2F2023%2F10%2F9%2Fwestern-leaders-accused-of-hypocrisy-over-response-to-palestine-ukraine
An illustration of a woman’s face, in which one eye is closed beside a Palestinian flag, and one eye open beside a Ukrainian flag, has been regularly shared as a symbol of the West’s alleged double standards in how the two conflicts are viewed.
https://twitter.com/OnlinePalEng/status/1710994682883273172?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1710994682883273172%7Ctwgr%5E6acf829869e993177f32aa38aa48c02f38cb7f61%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.aljazeera.com%2Fnews%2F2023%2F10%2F9%2Fwestern-leaders-accused-of-hypocrisy-over-response-to-palestine-ukraine
Clips also emerged on social media from a CNN interview with Mustafa Barghouti, the general secretary of the Palestinian National Initiative, in which he posed the rhetorical question, “Why does the United States support Ukraine in fighting occupation – while here they support the occupier, who continues to occupy us?”
The hypocrisy and double standards of western governments and media platforms dealing with situations in Ukraine-Russia and Palestine-Israel blow the mind. Absolute disgrace.
— Said Yacoubi (@AlyacoubiSaid) October 8, 2023
It is not the first time Western nations have been accused of double standards in their stance on the Ukraine war.
Earlier in the year, Amnesty International published a report highlighting the West’s “double standards” on global human rights.
Agnes Callamard, Amnesty’s secretary-general, told Al Jazeera at the time that the occupation of Palestinian territory was a “particularly important one”.
“Without making any comparison between Russia’s aggression and Israel … it is clear the Palestinian people are under a regime of oppression – a regime of occupation and a regime of apartheid,” Callamard told Al Jazeera.
Over the last three days, X users recirculated earlier statements calling out what they called Western hypocrisy, sharing video by the Irish lawmaker Richard Boyd Barrett from March 2022 in which he berated the Irish government’s double standards regarding Ukraine and Palestine:
“You’re happy to use the most strong and robust language to describe the crimes against humanity of [Russian President] Vladimir Putin, but you will not use the same strength of language when it comes to describing Israel’s treatment of the Palestinians.”
Barrett on Sunday again called out what he described as “shocking double standards of Western leaders supporting Ukraine resistance but condemning Palestinian[s].”
Meanwhile, others warned against comparing conflicts.
https://twitter.com/denfordauthor/status/1710993737738768607?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1710993737738768607%7Ctwgr%5E6acf829869e993177f32aa38aa48c02f38cb7f61%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.aljazeera.com%2Fnews%2F2023%2F10%2F9%2Fwestern-leaders-accused-of-hypocrisy-over-response-to-palestine-ukraine
And some cautioned that Hamas and the Palestinians should not be seen as one and the same.
Just to clarify:
Palestine did not mount an attack on Israel. An Iranian proxy militia did. Palestinians are by and large huddled in their homes praying that an Israeli airstrike won't kill them or theirs. Hamas is the culprit here. This isn't a decentralized grassroots thing.
— Romeo Kokriatski (@VagrantJourno) October 9, 2023
Ukrainian footballer Oleksandr Zinchenko, who plays for Arsenal, posted on Instagram, stating he “stands with Israel”.
Zinchenko has been a vocal supporter of his home country in its ongoing defence against Russia, and he participated in a Game4Ukraine charity match in London earlier this year to raise money for Ukraine.
After online backlash, with some questioning an alleged double standard in his support of Israel, the footballer removed the post and switched his social media account to private.
Several people claimed that Zinchenko’s football club, in not responding to his comments, was guilty of hypocrisy after they had distanced themselves from former player Mesut Ozil’s comments in 2019 over alleged human rights abuses against Uighur Muslims in China.
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