So, Justice Alito’s leaked draft opinion suggests Roe v Wade will be overturned. What does that possibility suggest for other rights? Justice Alito wrote in the draft opinion that the 14th Amendment did not specifically name abortion and otherwise does not protect a right to abortion. The draft opinion concerns the case of Dobbs v. Jackson Women’s Health Organization. Follow this link to see the draft opinion here.
The justice said, “That provision has been held to guarantee some rights that are not mentioned by the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.” Lawrence H. Tribe, a constitutional legal scholar from Harvard University, wrote an op-ed for the Boston Globe criticizing the draft opinion. Mr. Tribe noted that such language suggests that rights we tend to take for granted, such as right to marry a person of our choice, birth control, with whom to have sex, how to raise children, and a lengthy list of other freedoms – also are not specifically named in the Constitution and also do not have deep roots in our country’s history.
Erwin Chemerinsky, dean of the Berkeley School of Law, noted that many rights we now enjoy rely on the same privacy interests which support Roe v. Wade. Griswold v. Connecticut, 381 U.S. 479 (1965) rests on that same privacy interest, which is not specifically identified in the Constitution. Griswold protects the right to use contraception. When Roe falls, how long will it be before states start passing laws restricting contraception and the morning-after pill? asks Chemerinsky. Indeed, late last week, Tennessee passed a bill making it a crime to use the morning after pill.
In Obergefell v. Hodges, 576 U.S. 644 (2015), the Supreme Court extended the due process clause and the equal protection clause of the 14th Amendment to same sex marriage. Neal Katyal, former Solicitor General of the U.S. wrote in an opinion piece that the Obergefell decision does not rest on deep-seated tradition, but on a sense of traditional American liberty. Jordan Woods of the LGBTQ Law & Policy Program, noted that Justice Alito’s reasoning in the draft opinion is similar to his dissent in Obergefell.
Other experts note that in the draft opinion, Justice Alito expressly states the decision only applies to abortion. The Dobbs draft opinion states that the Roe decision is different from these other decisions because it addresses potential human life. But, even so, the same reasoning will clearly apply to a wide range of interests all of which ultimately rest on this privacy interest – which is not specifically named in the Constitution, yet so many courts seem to find. See the ABA Bar Journal here for more information.
Too, Justice Alito’s tone in his draft opinion is concerning. Both sides in this huge abortion debate have valid points. I do not believe it helps either side of that debate for Justice Alito to engage in a mocking, even contemptuous tone in his draft opinion. I hope that this contempt will be written out in subsequent drafts.