It is impossible to isolate the Roux path from the historical provisions of marriage and contraception


In the draft, Alito said what “sharply” distinguishes Roe, and the 1992 follow-up Casey Against Planned Parenthood, from those other cases is that abortion destroys “life potential.”

“None of the other decisions cited by Roe and Casey included the critical ethical question abortion poses,” he said. “They do not support the right to abortion, and by the same token, our conclusion that the Constitution does not grant such a right does not in any way undermine it.”

But critics of the draft resolution will take comfort in Alito’s words trying to isolate abortion from everything else.

They believe that if Alito’s opinion is eventually presented, it will be an opening impulse in an effort to target other rights based on privacy and freedom. It would also destabilize the law by making the legal doctrine of stare – the idea that courts should follow their precedents even if they disagree with them, to protect the coherence of the law – a dead letter. And it will raise new questions about the politicization of the court.

Liberal Justice Sonia Sotomayor outlined these concerns in oral arguments in December. She noted that in the Casey and Roe case, the court said there is “inherent in our structure” an understanding that there are “personal decisions that are personal to individuals and over which states cannot interfere.” She then presented cases relating to the right to contraception and the right to marry, and said that “none of these things were written in the constitution.”

“They were all distinguished from the structure of the constitution,” she said.

For example, in 1967, the court ruled in the Loving v. Virginia, which included the right to marry a person of a different sex. The court held that “the freedom to marry, or not to marry, to a person of another sex belongs to the individual, and cannot be infringed by the state.” The court relied on parts of Loving when Casey decided.

And in 1965 the court ruled the right to obtain contraceptives in a case called Griswold v. Connecticut. In Opinion 7-2, the Court said the Constitution protects the right to marital privacy against state restrictions on contraceptives. This general right to privacy is also cited in Roe and Casey.

Sotomayor then turned to politics: “Why do we now say that Roe and Casey are so extraordinary that they should be turned?” She noted that Mississippi law sponsors on hand said they were doing so “because we have new justices on the Supreme Court.”

“Will this institution escape the stench this creates in the public perception that the constitution and its reading are mere political acts?” I wondered.

Judge Amy Connie Barrett jumped in shortly thereafter, and a Mississippi state attorney asked, “Does a decision in your favor call any of the cases determined by Judge Sotomayor into question?”

None of them would do so because none of them “involve the willful end of a human life,” Mississippi Attorney General Scott Stewart said.

But legal experts doubt the repercussions will not be quick.

They point to another part of Alito’s draft opinion. He noted that the Biden administration relied on decisions such as Lawrence v. Texas (the right to engage in consensual sexual acts) and Obergefell v. Hodges (the right to marry a person of the same sex) in defense of Roe.

Alito's long legal career has been marked by criticism of Roe's rights and abortion

Alito wrote: “These attempts to justify abortion by appealing to a broader right to autonomy and to define one’s ‘concept of being’ prove to be too much.” He said that such standards “at a high level of generality” could authorize “the basic rights of illegal drug use, prostitution and the like”.

“None of these rights has any claim to be deeply rooted in history,” he said.

said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas Law School.

“If a majority of judges are no longer willing to recognize such a right in the context of abortion – in fact, who believe the court should never have recognized it – that calls into question those other rights as well,” he said. .

Alito himself voted against the right to same-sex marriage when the case was decided in 2015.

“The Constitution says nothing about the right to same-sex marriage, but the Court holds that the term ‘freedom’ in the Due Process Clause of the Fourteenth Amendment includes that right,” he said in opposition in similar language to the draft majority opinion. on ru.

Some believe Roe’s draft opinion is a roadmap for future challenges to civil rights provisions.

“If Judge Alito is left to his own devices, he happily welcomes the challenges of many basic rights court decisions,” said Leah Littman, a professor at the University of Michigan Law School. “The criticisms of Roe–not in the constitutional provision; no early state constitutional provisions or early decisions of state or federal courts recognizing a right–apply to those other rights, and he would be happy to overrule them if he could.”

Justice Samuel Alito says the Supreme Court is not a dangerous gang.

Jim Obergefell, the lead plaintiff in the same-sex marriage case who is now trying to get into politics, said in an interview with CNN that Alito’s draft opinion “frightens” him for this reason.

“It scares me because many of the rights we have — especially the LGBTQ+ community — are based on rights not mentioned under the 14th Amendment, the right to privacy,” said Obergefell. “And the belief that if the Constitution does not specifically define in writing this right, that is, the right to privacy, then all those rights which have been assured to us and which are based on the right to privacy under the Fourteenth Amendment will be in jeopardy.”

And while Alito and Mississippi attorneys treaded very cautiously, neither did one of the attorneys who wrote a “right to life” court brief from Texas.

Jonathan F. Mitchell—the architect of the six-week Texas ban—did not utter his words in the court memorandum he filed in the Mississippi case in support of the law.

“Members of this court are bound by an oath to support and defend the Constitution of the United States, and this is not the precedent of this court,” he said.

Roe, he said, “takes us to a land” where Supreme Court justices recognize and enforce their rights “which they believe should be protected by the Constitution.”

Mitchell allowed that the court could overturn Roe without “cutting the legs from under” Loving v. Virginia, which he said could be defended under the Civil Rights Act of 1866.

But he added: “The news is not good for those who hope to preserve court-invented rights to same-sex behavior and same-sex marriage.”

He said the court did not have to overturn those decisions if it decided to overturn Roe. “But the Court should not hesitate to write an opinion that leaves those decisions hanging by a thread,” he concluded, calling them “outlaws like Roe.”

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