The reported draft opinion is thoughtful, scholarly, and thorough. It does the work that the majority in Roe and Casey refused to do, looking to the Constitution itself to determine whether it includes a right to an abortion. The opinion concludes it does not.
The original text of the Ninth Amendment of the Constitution of the United States.
constitution.congress.gov
The 9th amendment does not mention the states at all. Rights are retained exclusively by people.
The original text of the Tenth Amendment of the Constitution of the United States.
constitution.congress.gov
The 10th does refer to powers, but says these power might belong to the states, or the people.
If the law recognizes abortion as a right of the people, it might pass muster here. My understand is that the 9th does not create rights on its own, just recognizes that unenumerated rights might exist.
I get your point, but the IX and X amendment have both been consistently interpreted to give rights to the states.
Originally the Ninth included a clause that Madison drafted that would not allow courts expand federal power by interpretation. This was removed by a committee to Madison's dismay. Federalists wanted the bill of rights to prevent federal expansion of power. Makes sense due to political climate at the time. The removal of that clause completely gutted the original intent, and has been used as an excuse for judicial activism ever since. My concern with judicial activism is it allows lifetime appointees to create (not interpret) the laws that affect us all. Not that this is much worse than law created by legislators that generally don't give a damn about their constituents.
There is a question whether the Commerce Clause would allow Federal regulation of abortion. There have been debates on trying to expand the commerce clause with a roller coaster of success and failure since 120 in the EC Knight case and has continued with Lopez, Morrison and Raich as the main cases from my recollection. Where Raich comes to a different conclusion that Lopez and Morrison, but the trending thought it the CC can't be used to allow protect abortion rights and prevent restriction of them. The CC like many part of the Constitution, have different interpretations, but I think the current court would more likely say that states have rights so the Federal Gov. law preserving abortion would likely be unconstitutional on that basis alone.
At the same time, this reversal can be a double edged sword. Pro-choice proponents can now push for states to allow abortion at much later terms (for good or bad) that pre-viability (some states were doing that already, which was likely illegal).
As far as the leak, the more I think about it, the more I think it could have come from either size of the bench. A sad day for the court.
A similar bill was already proposed, but they needed 60 votes, and it didn't get close. Even removing the filibuster, they may not get it. I guess we will see...
