(Trends Wide) — Judge Samuel Alito, in his draft opinion that would overturn Roe v. Wade tries to make clear that it shouldn’t necessarily affect other decisions, such as the right to marry a person of a different race or of the same sex and the right to birth control, which are based on some of the same strands of reasoning. legal than the milestone of the right to abortion.
In the draft, Alito said that what “clearly distinguishes” Roe, and the subsequent 1992 case Casey v. Planned Parenthood, of those others is that abortion destroys the “probability of life.”
“None of the other decisions cited by Roe and Casey involved the fundamental moral issue raised by abortion,” he said. “They do not support the right to abortion, and by the same token, our conclusion that the Constitution does not provide such a right does not undermine them in any way.”
But for critics of the project’s decision, Alito’s words that try to separate abortion from everything else will not serve as consolation.
They believe that if Alito’s opinion is eventually aired, it will represent the opening salvo to a push to target other rights based on privacy and freedom. It will also destabilize the law by turning the legal principle of decided – the notion that courts must follow their precedents even if they disagree with them in order to protect the cohesion of the law – dead letter. And it will raise new questions about the politicization of the court.
Liberal Justice Sonia Sotomayor noted these concerns in oral arguments in December. She pointed out that in Casey and Roe, the court said that it is “inherent in our structure” the understanding that there are “personal decisions that belong to individuals and states cannot meddle in them.” She then listed cases on the right to contraceptive methods and the right to marriage and said that “none of that is written in the Constitution.”
“All of them,” he said, “have been differentiated from the structure of the Constitution.”
For example, in 1967 the court decided on Loving v. Virginia, which involved the right to marry a person of a different race. The court held that “the freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the state.” The court relied on parts of Loving when deciding on Casey.
And in 1965 the court ruled on the right to obtain contraception in a case called Griswold v. Connecticut. In a 7-2 opinion, the court said the Constitution protects the right to spousal privacy against state restrictions on contraception. That general right to privacy was also cited in Roe and Casey.
Sotomayor then turned to politics: “Why are we now saying that Roe and Casey are so unusual that they should be overturned?” He noted that the sponsors of the Mississippi law in question said they were doing it “because we have new justices on the Supreme Court.”
“Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts?” she asked.
Judge Amy Coney Barrett weighed in soon after, asking a Mississippi attorney, “Would a decision in your favor call into question any of the cases that Judge Sotomayor is identifying?”
Mississippi Attorney General Scott Stewart said none of them would because none “involves the willful termination of human life.”
But legal experts are skeptical that the fallout won’t be swift.
They point to another part of Alito’s draft opinion. He pointed out that the Biden administration had relied on decisions like Lawrence v. Texas (the right to engage in private and consensual sexual acts) and Obergefell v. Hodges (the right to marry a person of the same sex) to defend Roe.
“These attempts to justify abortion by appealing to a broader right to autonomy and to define one’s ‘concept of existence’ are too much,” Alito wrote. He said such criteria “at a high level of generality” could authorize “fundamental rights to illicit drug use, prostitution and the like.”
“None of these rights have the right to be deeply rooted in history,” he said.
“Roe didn’t make up his mind in a vacuum; it is part of a broader understanding of the Constitution that recognizes the right to privacy in language that does not expressly identify it,” said Steve Vladeck, Trends Wide Supreme Court analyst and professor at the University of Texas School of Law. .
“If there is a majority of judges who are no longer willing to recognize that right in the context of abortion – in fact, who believe that the court should never have recognized it – then that calls those other rights into question as well,” she said.
Alito himself voted against same-sex marriage rights when that case was decided in 2015.
“The Constitution is silent on the right to same-sex marriage, but the Court holds that the term ‘liberty’ in the Due Process Clause of the Fourteenth Amendment encompasses this right,” he disagreed in language similar to of his draft majority opinion.
Some think Roe’s draft opinion is a road map for future challenges to civil rights rulings.
“On his own, Judge Alito would gladly challenge many of the Court’s founding fundamental rights decisions,” said Leah Litman, a professor at the University of Michigan Law School. “The criticisms he makes of Roe (they are not in the constitutional text; there are no early state constitutional provisions or early state or federal court decisions recognizing the right) apply to those other rights, and he would happily override them if he could.”
Jim Obergefell, the lead plaintiff in the same-sex marriage case, who is now trying to enter politics, said in an interview with Trends Wide that Alito’s draft opinion “scares” him for that reason.
“It scares the hell out of me because so many of the rights that we enjoy — especially the LGBTQ+ community — are based on rights not enumerated under the 14th Amendment, the right to privacy,” Obergefell said. “And the belief that if the Constitution does not specifically write down that right, that is, the right to privacy, then all those rights that have been asserted for us that are based on the right to privacy under the 14th Amendment are at risk”.
And while Alito and the Mississippi attorneys acted carefully, one attorney who wrote a friend-of-the-court brief on behalf of Texas Right to Life did not.
Jonathan F. Mitchell, the architect of the six-week ban in Texas, didn’t mince words in a friend-of-the-court brief filed in the Mississippi case in support of the law.
“Members of this Court are bound by oath to uphold and defend the Constitution of the United States,” he said, “not the precedent of this court.”
He said that Roe “has brought us to a land” where Supreme Court justices can recognize and enforce rights “that they believe should be protected by the Constitution.”
Mitchell admitted that the court could overrule Roe without “amputating” Loving v. Virginia, which he said is defensible under the Civil Rights Act of 1866.
But he added: “The news is not so good for those hoping to preserve court-invented rights to homosexual behavior and same-sex marriage.”
He said the court did not have to overturn those decisions if it decided to reverse Roe. “But the court should also not hesitate to write an opinion that leaves those decisions hanging in the balance,” he concluded, calling them “as anarchic as Roe.”
(Trends Wide) — Judge Samuel Alito, in his draft opinion that would overturn Roe v. Wade tries to make clear that it shouldn’t necessarily affect other decisions, such as the right to marry a person of a different race or of the same sex and the right to birth control, which are based on some of the same strands of reasoning. legal than the milestone of the right to abortion.
In the draft, Alito said that what “clearly distinguishes” Roe, and the subsequent 1992 case Casey v. Planned Parenthood, of those others is that abortion destroys the “probability of life.”
“None of the other decisions cited by Roe and Casey involved the fundamental moral issue raised by abortion,” he said. “They do not support the right to abortion, and by the same token, our conclusion that the Constitution does not provide such a right does not undermine them in any way.”
But for critics of the project’s decision, Alito’s words that try to separate abortion from everything else will not serve as consolation.
They believe that if Alito’s opinion is eventually aired, it will represent the opening salvo to a push to target other rights based on privacy and freedom. It will also destabilize the law by turning the legal principle of decided – the notion that courts must follow their precedents even if they disagree with them in order to protect the cohesion of the law – dead letter. And it will raise new questions about the politicization of the court.
Liberal Justice Sonia Sotomayor noted these concerns in oral arguments in December. She pointed out that in Casey and Roe, the court said that it is “inherent in our structure” the understanding that there are “personal decisions that belong to individuals and states cannot meddle in them.” She then listed cases on the right to contraceptive methods and the right to marriage and said that “none of that is written in the Constitution.”
“All of them,” he said, “have been differentiated from the structure of the Constitution.”
For example, in 1967 the court decided on Loving v. Virginia, which involved the right to marry a person of a different race. The court held that “the freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the state.” The court relied on parts of Loving when deciding on Casey.
And in 1965 the court ruled on the right to obtain contraception in a case called Griswold v. Connecticut. In a 7-2 opinion, the court said the Constitution protects the right to spousal privacy against state restrictions on contraception. That general right to privacy was also cited in Roe and Casey.
Sotomayor then turned to politics: “Why are we now saying that Roe and Casey are so unusual that they should be overturned?” He noted that the sponsors of the Mississippi law in question said they were doing it “because we have new justices on the Supreme Court.”
“Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts?” she asked.
Judge Amy Coney Barrett weighed in soon after, asking a Mississippi attorney, “Would a decision in your favor call into question any of the cases that Judge Sotomayor is identifying?”
Mississippi Attorney General Scott Stewart said none of them would because none “involves the willful termination of human life.”
But legal experts are skeptical that the fallout won’t be swift.
They point to another part of Alito’s draft opinion. He pointed out that the Biden administration had relied on decisions like Lawrence v. Texas (the right to engage in private and consensual sexual acts) and Obergefell v. Hodges (the right to marry a person of the same sex) to defend Roe.
“These attempts to justify abortion by appealing to a broader right to autonomy and to define one’s ‘concept of existence’ are too much,” Alito wrote. He said such criteria “at a high level of generality” could authorize “fundamental rights to illicit drug use, prostitution and the like.”
“None of these rights have the right to be deeply rooted in history,” he said.
“Roe didn’t make up his mind in a vacuum; it is part of a broader understanding of the Constitution that recognizes the right to privacy in language that does not expressly identify it,” said Steve Vladeck, Trends Wide Supreme Court analyst and professor at the University of Texas School of Law. .
“If there is a majority of judges who are no longer willing to recognize that right in the context of abortion – in fact, who believe that the court should never have recognized it – then that calls those other rights into question as well,” she said.
Alito himself voted against same-sex marriage rights when that case was decided in 2015.
“The Constitution is silent on the right to same-sex marriage, but the Court holds that the term ‘liberty’ in the Due Process Clause of the Fourteenth Amendment encompasses this right,” he disagreed in language similar to of his draft majority opinion.
Some think Roe’s draft opinion is a road map for future challenges to civil rights rulings.
“On his own, Judge Alito would gladly challenge many of the Court’s founding fundamental rights decisions,” said Leah Litman, a professor at the University of Michigan Law School. “The criticisms he makes of Roe (they are not in the constitutional text; there are no early state constitutional provisions or early state or federal court decisions recognizing the right) apply to those other rights, and he would happily override them if he could.”
Jim Obergefell, the lead plaintiff in the same-sex marriage case, who is now trying to enter politics, said in an interview with Trends Wide that Alito’s draft opinion “scares” him for that reason.
“It scares the hell out of me because so many of the rights that we enjoy — especially the LGBTQ+ community — are based on rights not enumerated under the 14th Amendment, the right to privacy,” Obergefell said. “And the belief that if the Constitution does not specifically write down that right, that is, the right to privacy, then all those rights that have been asserted for us that are based on the right to privacy under the 14th Amendment are at risk”.
And while Alito and the Mississippi attorneys acted carefully, one attorney who wrote a friend-of-the-court brief on behalf of Texas Right to Life did not.
Jonathan F. Mitchell, the architect of the six-week ban in Texas, didn’t mince words in a friend-of-the-court brief filed in the Mississippi case in support of the law.
“Members of this Court are bound by oath to uphold and defend the Constitution of the United States,” he said, “not the precedent of this court.”
He said that Roe “has brought us to a land” where Supreme Court justices can recognize and enforce rights “that they believe should be protected by the Constitution.”
Mitchell admitted that the court could overrule Roe without “amputating” Loving v. Virginia, which he said is defensible under the Civil Rights Act of 1866.
But he added: “The news is not so good for those hoping to preserve court-invented rights to homosexual behavior and same-sex marriage.”
He said the court did not have to overturn those decisions if it decided to reverse Roe. “But the court should also not hesitate to write an opinion that leaves those decisions hanging in the balance,” he concluded, calling them “as anarchic as Roe.”