The Plan to Repeal the 20th Century
Adam Serwer writing in The Atlantic about the leaked Supreme Court opinion draft penned by conservative justice Samuel Alito that will, if it remains substantially unmodified, overturn Roe v Wade and other precedents that guarantee the right to an abortion in the United States.
“The majority can believe that it’s only eviscerating a right to abortion in this draft,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me, “but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”
Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections. This is as arbitrary as it is lawless. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful. The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets. But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.
“In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating,” Kimberly Wehle wrote last December. “A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.”
And:
On the grounds that it constitutes a form of religious discrimination, conservatives will be able to claim an exemption from any generally applicable rule they do not wish to follow, while imposing their own religious and ideological views on those who do not share them. Although the right-wing justices present this rule in the language of constitutionalism, they are simply imposing their ideological and cultural preferences on the rest of the country.
Abortion, same-sex marriage, birth control, rights for trans persons, other LGBTQ protections, other civil rights — it’s all on the table, they’re coming for all of it.
Update: See also This is just the beginning:
I ask you to re-read the above passage and substitute for the word “abortion” any other modern liberty not mentioned in the Constitution: the right to use contraception, same-sex marriage, the right of same-sex couples to adopt children, marriage between different “races,” the right of any consenting adults to engage in sex, the right of unmarried couples to live together, and the rights of LGBTQ people to be treated with equal dignity.
Each of the above rights — now widely accepted — was criminalized or prohibited in many U.S. states until the latter part of the 20th century. Under Justice Alito’s reasoning, because the Constitution “makes no reference to those rights” and they were “unknown” in American jurisprudence until recently, the Constitution affords them no protection. Alito does handsprings to claim the draft ruling does not reach other rights rooted in the same legal ground as Roe and Casey. But there is no difference under Alito’s reasoning between abortion and contraception, same sex marriage, same-sex adoption, and bans against “fornication,” “sodomy,” cohabitation, and “miscegenation.”
This is just the beginning.
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