Flashback: Progressive legal experts call Roe v. Wade constitutionally 'indefensible'

close

Video

Shannon Bream: SCOTUS draft opinion means abortion would be left to states

"Fox News @ Night" anchor Shannon Bream on how the SCOTUS Roe v. Wade draft would give states stronger authority when it comes to abortion rights.

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."

The Supreme Court building in Washington, D.C. (AP Photo/J. Scott Applewhite, File) (AP Photo/J. Scott Applewhite, File)

SUPREME COURT SET TO OVERTURN ROE V. WADE, LEAKED DRAFT OPINION SHOWS: REPORT

"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."

Supreme Court Justice Samuel Alito addresses the audience during the "The Emergency Docket" lecture (Michael Caterina /South Bend Tribune via AP) (Michael Caterina /South Bend Tribune via AP)

REPORTER'S NOTEBOOK: WHAT THE SUPREME COURT'S LEAKED DRAFT OPINION MEANS FOR CONGRESS

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."

CLICK HERE TO GET THE FOX NEWS APP

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."

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. (AP Photo/Anna Johnson) (AP Photo/Anna Johnson)

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