Florida Criminal Defense and DUI Defense Blog

5May, 22

Associate Attorney Wendy Diaz weighs in on the leaked Supreme Court draft opinion on overturning Roe v Wade.

SCOTUS leakThe main focus of the draft opinion by Justice Alito is the abortion issue and Roe vs. Wade. It really takes a very personal and professional evaluation because I am a female, I am a lawyer, so I’m a female attorney. And this will affect not only the way that I live my life, but how I practice and how, not only myself but other male and non-binary attorneys will speak with their clients.

Caveat: it’s a ninety-eight page draft, and I’m only about, maybe, 14-15 pages in. I just wanted to take a moment to share my thoughts.

The first sentence of this opinion says, “Abortion presents the profound moral issue in which Americans hold sharply conflicting views.” Duh. You’re either pro-abortion, you’re not, or you’re in-between where abortion is wrong, unless insert-your-reason-here (whether it’s to save the mom’s life or the fetus/baby/unborn human-being – that’s really the gray area). And the court does indicate that it’s permissible under “limited grounds”. What those “limited grounds” are, no one yet has an explanation, whether it’s a financial reason, medical reason, or any other type of reason that my emotions just can’t think of right now.


Justice Alito divides this analysis into three parts. It’s whether or not abortion is a liberty granted in the Constitution, the history in regards to abortion and whether or not there are any other historical precedents. He did indicate that the first time abortion was even mentioned was a couple of years before Roe vs. Wade. So we’re talking in the 1970s, so any historical reference is going to be made by men who considered women property. In most cases, chattel was more valuable than women, unless the woman’s father or hereditary aspect made her rich. So every aspect of this case is being analyzed by history made of men for a gender that doesn’t have a say in what happens to a person’s body.

Justice Alito also classifies pregnancy of women into three trimesters, three months, but, as a woman, I was looking at it as a quarterly report. Out of a twelve-month cycle, I could be pregnant three fourths of it. And depending upon where my body is, at that time, could be whether or not I have certain privileges, or not.

Going back to the concept of whether abortion is a right, they discuss different amendments – the first, fifth, ninth and the fourteenth, adopting everything into the state powers.

You know what else isn’t a right? The right to education, that’s not a right. The right to privacy, that’s not a right inserted in the Constitution.

But they’re inherently valuable. Everyone wants to be educated. Everyone wants to be able to close their door and have their moment alone, whether it’s your moment solely alone or with your family. Upon you closing the door, it sends the message to the community that you are to be left alone.

Justice Alito disagrees with that concept that abortion isn’t a right involving a combination of those amendments. But I disagree.

Also another disclosure, I was born and raised Catholic. I am a practicing Catholic. And  I am a right-to-choose. It’s not my responsibility to tell a friend of mine, or a perfect stranger, what she should do with her body. That’s her private decision within her own home.

The Declaration of Independence indicated the pursuit of happiness, even though that’s not in the Constitution. People can get that mixed up, but that’s another podcast for another time. It integrates everything that it is to be an American – your right to not be governed by the government, to not have everything be told upon us to how it could be done, the way they want it to.

And as a Catholic person, it’s not my job to force my religion, or my belief, onto somebody else, especially because I don’t know the circumstances. It’s not my business. I wasn’t there.

And it takes into account other issues that people don’t think about, such as welfare. Are this child and this mom going to be on food stamps? And are my tax dollars now going to be paying for this?

It’s just interesting where someone who doesn’t have the biological capability to have a child, make and use words such as “absolutely”, “clearly”, “egregiously” in a tone of a condescending, dad that’s lecturing because you’re going to be grounded for whatever reason.

It takes us back to a time where most people, regardless of where you might stand on the issue, wouldn’t think we’d go back to. You know, the Republicans tend to want not as much government interference, but this is exactly what’s going to happen. The slippery slope that is going to come, I can only see civil rights groups Planned Parenthood, individual people going to the courts to be protected.

Justice Alito goes on and talks about whether or not something is viable, or whether a fetus is abnormal. Who makes those decisions? No one has the right answer. It’s just interesting how men, because more than likely the five that are agreeing are Gorsuch, Kavanaugh, Alito, Thomas, and the lone woman, Justice Barrett.

And it’s just frightening to know that things such as religious freedom, whether or not you’re Christian, whether or not you have a faith, welfare issues, which taxes the economy, and with the inflation that the pandemic has brought, is only going to bring into more issues, medical care for these women that don’t want to have medical care, and I think I said childcare already. But the amount of money that goes into having a baby, a woman’s potential livelihood being cut short because the choice of childcare that could cost up to a mortgage versus free childcare if you just stay at home and quit your dream.

And the adage I always think of with my friends that in regards to this basically is a control upon women. A woman has a gestational period of about nine months. There’s three months leftover within the year, so it’s very unlikely she’s going to get pregnant. But if you put a man and if he has a relationship with a woman, 365 days of the year, that’s 365 potential pregnancies coming from one man. Physically, that will never happen from one woman. So it just goes back to what is the historical purpose of this? Is it really to control women? Is it really for a man to appear dominant, which may not necessarily be the same as controlling a woman just controlling the avenue? Or is it a true look at what the Constitution is and whether the new court is going to be a strict interpretation of the Constitution, or have a more fluid view of it? Because if that’s the case, then what’s going to happen to interracial marriage, school segregation, the public school system, rights for the disabled, the LGBTQ community, regardless of where you stand on those issues, all of those issues have some integrated parts through the Constitution, not directly but through the Bill of Rights and the rest of the amendments, and even at some point, some of the Declaration of Independence.

It’s just very, very new and in a very old, old way. and being this far into technology and the advancements that we have, for someone who is pretty old, to look at history and favor history versus progression, is just ironic that we’re a nation that was born to evolve and grow, but we’re still stuck in in a place that changes bad, but change is just constant.

I’ll come back once I read the rest of the eighty-seven pages I have left. But that’s just really my first raw take on the issue. I did notice that it was drafted back in February. It was sent out to the rest of the judges, we’re now in May. So it’s been over two months. I’m not really sure if the court was even looking at it, what they are considering.


The Chief Justice did send out a statement saying that these aren’t the formal opinions of the Supreme Court. It is just a draft. And what might come from this case, who knows? More than likely, someone’s going to get fired. Whether they’re dying for a cause, that’s for you to decide. But there’s definitely going to be some sort of investigation, and it’s definitely all to be determined and to be seen.

This is just the first of many conversations that I think, not just us, the legal community, but at your home, around the dinner table, at church. It’ll just come and grow, so we’ll see what comes of it.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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