BUFFALO, N.Y. (WBEN) With speculation swirling over a leaked draft opinion in a blockbuster abortion case, a high level attorney in Western New York, is offering perspective on what might be behind Justice Samuel Alito's majority opinion.
"I think what he's trying to accomplish here, is not that abortion is illegal, but he's saying that it's not constitutionally protected, but respective states can craft their own scheme," said Dennis C. Vacco, former US Attorney in WNY and former New York State Attorney General. Vacco is currently a partner with Lippes Mathias LLP.
Vacco said it's important to point out that abortion was legal in New York State in 1971, two full years before Roe vs Wade. So, New York State did not need the Supreme Court, nor Roe v Wade to make abortion lawful in the state.
"Alito, in his draft opinion, is suggesting," Vacco said, "that states follow New York State's lead from 1971, and let the body politic make the decision as to what abortion should look like in a respective state."
Vacco draws his perspective from a case he argued in front of the U.S. Supreme Court twenty five years ago.
The case was Vacco vs. Quill (1997), during Vacco's tenure as state attorney general. The case was about whether or not there was a constitutionally protected right to physician assisted suicide.
"In a 9-0 ruling," said Vacco, "the court said it is not a constitutionally protected right to have a physician assist a suicide. The court sent the issue back to where it belongs, to the body politic, back to the states."
Back then, there were only two states that had made physician assisted suicide legal. Twenty five years later, fewer than ten states that have enacted the rule.
"That's what Alito is trying to accomplish here (with Ros v Wade)," said Vacco. "He's trying to push the issue back to the states. New York has already made abortion lawful, so let the debate rage; the political debate, and the legal debate at the state level closer the the body politic. That's all this decision is suggesting. It's not making abortion illegal. It is saying that it is not constitutionally protected from state interests," he said.
Only two members that were on the court in 1997 are on the Supreme Court today, Stephen Breyer and Clarence Thomas. Breyer is retiring at the end of the current term.
