In the draft, Alito said that what “sharply distinguishes” Roe, and the 1992 follow-up Casey v. Planned Parenthood, from those other cases is that abortion destroys “potential life.”
“None of the other decisions cited by Roe and Casey, involved the critical moral question posed by abortion,” he said. “They do not support the right to an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
But critics of the draft decision will take cold comfort in Alito’s words attempting to wall off abortion from everything else.
They believe that if Alito’s opinion is ultimately rendered, it will represent an opening salvo in a push to target other rights grounded in privacy and liberty. It will also destabilize the law by rendering the legal doctrine of stare decisis — the notion that courts should follow their precedents even if they disagree with them, to protect the cohesion of the law — a dead letter. And it will raise new questions about the politicization of the court.
Liberal Justice Sonia Sotomayor pinpointed these concerns at oral arguments in December. She noted that in Casey and Roe, the court said there is “inherent in our structure” the understanding that there are “personal decisions that belong to individuals and the states can’t intrude on them.” Then she listed cases concerning the right to contraception and the right to marry and said that “none of those things are written in the Constitution.”
“They have all,” she said, “been discerned from the structure of the Constitution.”
For instance, in 1967 the court decided 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 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 it decided Casey.
And in 1965 the court ruled on the right to obtain contraceptives in a case called Griswold v. Connecticut. In a 7-2 opinion, the court said the Constitution protects the right to marital privacy against state restrictions on contraception. That general right to privacy was also cited in Roe and Casey.
Then Sotomayor turned to politics: “Why do we now say that Roe and Casey are so unusual that they must be overturned?” She noted that the sponsors of the Mississippi law at hand said they were doing it “because we have new justices on the Supreme Court.”
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she queried.
Justice Amy Coney Barrett jumped in soon afterward, asking a lawyer for Mississippi, “Would a decision in your favor call any of the cases that Justice Sotomayor is identifying into question?”
Mississippi Solicitor General Scott Stewart said none of them would because none “involve the purposeful termination of a 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 noted that the Biden administration had relied upon decisions like Lawrence v. Texas (the right to engage in private, consensual sexual acts) and Obergefell v. Hodges (the right to marry a person of the same sex) in defending Roe.
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” Alito wrote. He said that such criteria “at a high level of generality” could license fundamental “rights to illicit drug use, prostitution, and the like.”
“None of these rights has any claim to being deeply rooted in history,” he said.
“Roe wasn’t decided in a vacuum; it’s part of a larger understanding of the Constitution that recognizes a right to privacy in text that doesn’t expressly identify it,” said Steve Vladeck, a CNN Supreme Court analyst who’s a professor at the University of Texas School of Law.
“If there’s a majority of justices no longer willing to recognize such a right in the context of abortion — indeed, who believe the court should never have recognized it — then that calls into question those other rights, as well,” he said.
Alito himself voted against the right to same-sex marriage when that case was decided in 2015.
“The Constitution says nothing about a 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 said in dissent in language similar to his draft majority opinion on Roe.
Some think the Roe draft opinion is a road map for future challenges to civil rights rulings.
“Left to his own devices, Justice Alito would happily welcome challenges to many of the Court’s foundational fundamental rights decisions,” said Leah Litman, a professor at the University of Michigan Law School. “The critiques he levels at Roe — it’s not in the constitutional text; there aren’t early state constitutional provisions or early state or federal court decisions recognizing the right — apply to those other rights, and he’d happily overrule 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 CNN that Alito’s draft opinion “scares” him for that reason.
“It scares the daylights out of me because many of the rights we enjoy — especially the LGBTQ + community — are based on unenumerated rights under the 14th Amendment, the right to privacy,” Obergefell said. “And the belief that if the Constitution doesn’t specifically in writing outline that right, i.e. the right to privacy, then all of those rights that have been affirmed for us that are based on the right to privacy under the 14th Amendment are at risk. ”
And while Alito and lawyers for Mississippi tread very carefully, one lawyer writing a friend of the court brief on behalf of Texas Right to Life did not.
Jonathan F. Mitchell — the architect of Texas’ six-week ban — did not mince his words in a friend of the court brief filed in the Mississippi case in support of the law.
“The members of this Court are bound by oath to support and defend the Constitution of the United States,” he said,”not the precedent of this court.”
He said Roe has “taken us to a land” where Supreme Court justices get to recognize and enforce rights “that they think ought to be protected by the Constitution.”
Mitchell allowed that the court could overturn Roe without “cutting the legs from under” Loving v. Texas, which he said is defensible under the Civil Rights Act of 1866.
But he added: “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage.”
He said the court did not have to overrule those decisions if it decided to overturn Roe. “But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread,” he concluded, calling them “as lawless as Roe.”