With a leaked draft opinion this week revealing that the US Supreme Court appears poised to overturn nearly 50 years of precedent for abortion rights, Democrats and activists are sounding alarm bells that other rights are not explicitly enumerated in the Constitution, but long considered protected as implied rights. of privacy, could be threatened next.
“If the rationale for the decision were to stand, as published, a whole range of rights are at stake, a whole range of rights,” President Joe Biden told reporters Tuesday, offering his first public reaction to the decision. . document since the court confirmed its authenticity.
“If the right to privacy is weakened,” Vice President Kamala Harris said, “everyone could face a future in which the government could interfere with the personal decisions they make about their lives.”
Their anxiety, legal experts told ABC News, is not just that Roe will be overturned, but also how it would be reversed, and whether the final opinion’s language and reasoning could set the stage for other unenumerated rights, those that are not directly enumerated in the Constitution. — to be similarly returned to be decided by the states.
While Judge Samuel Alito writes in the draft opinion that the court’s decision in Dobbs v. Jackson Women’s Health Organization refers only to abortion and does not extend to other rights, experts say its current justification for repealing Roe opens the door to jeopardize other long-standing freedoms. the court has defended for decades.
Here is what legal experts are saying about the draft text:
Alito’s ‘originalist’ approach
The Supreme Court based its 1973 decision on Roe v. Wade in the Due Process Clause of the Fourteenth Amendment, which the court says guarantees Americans an implicit “right to privacy,” even though that phrase is not used in the Constitution.
Justice Harry Blackmun described the constitutional underpinnings of that right in writing the opinion: “This right to privacy, whether based on the Fourteenth Amendment concept of personal liberty and restrictions on state action, as we believe it to be, or, as the District court found, in the Ninth Amendment reservation of personal rights, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the 1973 decision read.
But Alito, who rejects stare decisis, the legal doctrine that seeks to force courts to abide by previous rulings, when it comes to abortion, called the court’s decision on Roe “grossly wrong from the start.” Taking an originalist approach, he argues in the draft opinion obtained by Politico that there is no explicit right to privacy, much less a right to abortion, in the Constitution.
“He argued that the right to abortion, which is not mentioned in the Constitution, is part of the right to privacy, which is also not mentioned,” Alito writes, calling Roe’s decision “remarkably weak in its treatment of the constitutional text.” and arguing that stare decisis “does not compel endless adherence to Roe’s abuse of judicial authority.”
Disagreeing with Alito’s reasoning, Biden said Wednesday that he believes the court’s current conservative majority would agree with failed Supreme Court nominee Robert Bork’s view that the right to privacy should not have been guaranteed with the court ruling in 1965 in Griswold v. Connecticut, which lifted the ban on married couples’ access to contraception.
“Bork thought Griswold was a bad call, and I guess the Supreme Court guys now,” Biden said.
Marc Spindelman, a professor at The Ohio State University Moritz School of Law, said it’s because of Alito’s reasoning, which appears to reject judicial precedent and the right to privacy in favor of an originalist interpretation of the Constitution, which puts other precedents, such as the right to same-sex intimacy in Lawrence v. Texas in 2003 and same-sex marriage in Obergefell v. Hodges in 2015, at risk, since those rights were also subject to the Fourteenth Amendment.
“From the point of view of originalist reasoning, it is difficult to see what is distinctive about abortion compared to other rights that are now constitutionally protected but that the originalist methodology, in principle, threatens,” Spindelman said.
Kate Shaw, a professor at Cardozo Law School and a contributor to ABC News, echoed that view.
“The whole method that the Roe Court used, which is basically saying what are the key attributes of liberty that the Constitution has to protect, whether or not they are written in the document, Alito says that method is totally illegitimate,” she said. “And instead, what the Constitution should read to protect are explicitly enumerated rights and a small, small list of unenumerated rights, but only rights that are deeply rooted in history and tradition.”
Alito wrote in the draft opinion: “Nothing in this opinion should be understood as calling into question non-abortion precedents.”
“What clearly distinguishes the right to abortion,” he said, is that it destroys “potential life” and that “none of the other decisions cited by Roe and Casey involved the critical moral issue raised by abortion.”
In deciding whether a right is protected, Alito said the court “has long asked whether the right is ‘deeply embedded in [our] history and tradition’ and whether it is essential to our nation’s ‘ordered liberty scheme’.” In Alito’s view, abortion falls short of that standard.
“What Alito says is, don’t worry. Our decision today is only about abortion, not about anything else,” he said. “But if an originalist approach is the touchstone for judgment in the case, then it is hard to see how or why the decision should not apply to other kinds of individual rights that the Court has said are protected by the Fourteenth Amendment.” .
That approach, in principle, could doom any right that hasn’t existed since the founding of the country, Spindelman said.
“It is hard to see why, if once it is uprooted, the most recent decisions should remain on the ground for the court to count as part of its respect for its own precedent,” he added.
So could the court find a way to remove abortion from the right to privacy without unraveling other precedents? Rachel Barkow, former clerk to Justice Antonin Scalia and assistant dean of the New York University School of Law, doesn’t think so.
“I think you can’t do it consistently,” he said. “Unfortunately, that’s actually what erodes the legitimacy of the court as an institution because it’s not the leak that will damage the legitimacy of the court, it’s not upholding the fundamentals and being consistent over time.”
The problem for the court, he said, is that the Roe decision is part of a line of cases required to recognize the right to privacy, “and the draft opinion shows no respect for the right to privacy, and in view of that, all the cases that are based on that right to privacy would also be found under the same logic”.
“I think the biggest thing the public sees is that there is no certain precedent,” Barkow said. hearings, and it’s one of the reasons they’re sitting there because they assured the senators they weren’t going to overturn it, and then they did.”
“I don’t think anyone can really take that group of people at their word if they say, ‘Oh no, the other precedents are safe,'” he added. “I think they cried wolf too many times.”
opinion could change
When the court confirmed the document’s authenticity on Tuesday, it emphasized in a statement that it “does not represent a decision of the court or the final position of any member on the issues in the case.”
The experts highlighted to ABC News that the opinions of the courts may change throughout its writing. The leaked decision could come up with a completely different decision, or completely unchanged.
“We don’t know exactly what this final opinion will look like when it’s issued,” Shaw said. “But I would say that, absent something truly extraordinary and unexpected happening inside the court, some version of this opinion will be issued as the opinion of the court in a matter of weeks, that will be the law of the land, and Roe v. Wade will be no more.”
And if so, the question is how soon the fate of other privacy rights, from states and others challenging their constitutionality, using conservative justices’ own arguments, will come before the court.
Devin Dwyer of ABC News contributed to this report.