The extraordinary disclosure of a draft Supreme Court opinion that would overturn Roe v. Wade is giving liberal legal advocates nightmares that go well beyond the right to abortion.
While relegating Roe to the dustbin of history would be painful enough for many on the left, a raft of legal commentators declared Tuesday that Alito’s initial draft in the pending case on Mississippi’s 15-week abortion ban could set off a series of other setbacks to victories dating all the way back to the 1960s in pivotal cases over individual rights.
Liberals now warn that gay marriage, contraception and other rights rooted in a long-established constitutional protection for privacy could be threatened, based on Alito’s writing and reasoning in the draft opinion.
“Take this seriously,” former U.S. Attorney Joyce White Vance wrote on Twitter. “If Roe falls, rights that are further up that branch of the tree are also vulnerable.”
Former Sen. Claire McCaskill (D-Mo.) struck a similar note of alarm, warning that almost any right grounded in concerns about personal privacy was in jeopardy if an opinion like Alito’s becomes law.
“They kicked the ladder out from under the right of privacy in the Constitution,” McCaskill said on MSNBC. “There are a lot of decisions that rest on this right of privacy that springs not just from the Bill of Rights, but also the 14th Amendment and the concept of liberty in this country.”
Alito actually included in his proposed opinion a helpful list of rights arguably undercut by overturning Roe, even as the conservative George W. Bush appointee forcefully insisted that setting aside Roe wouldn’t impact any right other than abortion. The protections discussed in Alito’s opinion range from the right to same-sex marriage the high court declared in 2015 to the right to contraception established in 1965 to the right to engage in interracial marriage adopted by the court in 1967.
After citing 14 such cases, Alito declares them irrelevant to abortion and confidently asserts that yanking Roe from the fabric of American jurisprudence would pose no threat whatsoever to any of those rights.
“They do not support the right to obtain 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,” Alito writes in the draft opinion published by POLITICO on Monday.
But many on the left simply don’t buy that. Among them is a prominent Delaware attorney: President Joe Biden.
“It would mean that every other decision relating to the notion of privacy is thrown into question,” Biden said in response to questions from reporters Tuesday, just after Chief Justice John Roberts issued a statement confirming the draft obtained by POLITICO is authentic.
“If the rationale of the decision as released were to be sustained, a whole range of rights are in question,” Biden added.
Biden specifically suggested that same-sex marriage could be again outlawed in some states if Alito’s view holds sway at the high court.
“Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?” the president said. “It’s a fundamental shift in American jurisprudence.”
Some court observers contend that Alito’s specific reasoning for dismantling Roe isn’t the only thing in the opinion that imperils other rights. Simply the act of overturning the 49-year-old precedent means that newer rights, like same-sex marriage, could meet the same fate.
“It’s both the reasoning and the very existence of this opinion that leave me completely unpersuaded that this majority would be willing to stop at Roe,” said University of Texas Law Professor Stephen Vladeck.
Vladeck also noted the recurring theme in Alito’s opinion that purported rights that aren’t firmly established in American traditions are inherently more suspect than those with a longer history.
“Even as the draft claims it’s limited to abortion, it’s focused on the pedigree of the right,” Vladeck said, adding that the same rationale “would apply in other contexts where the court has recognized other rights not sufficiently rooted in in American contemporary tradition to mollify the court.”
That would seem to put relatively recent decisions in the crosshairs, particularly Obergefell v. Hodges, the same-sex marriage ruling delivered just seven years ago.
However, some legal experts don’t think the slippery slope is all that slippery in practice because many of the rights Alito cites are no longer terribly controversial.
“There’s no national movement to overturn Obergefell,” said South Texas College of Law Professor Josh Blackman. “There is no jurisdiction in the country that wants to ban interracial marriage.”
Some analysts have dismissed the talk of sweeping impacts from overturning Roe as a classic “parade-of-horribles” argument — a tactic legal advocates use to argue that a decision will have effects that go far beyond the specific issue at hand.
In his draft, Alito seeks to preempt anticipated criticism from liberal justices by declaring that abortion “terminates ‘life or potential life’” and that none of the other rights cited involve such concerns. That may not be strictly true in the realm of contraception, but Alito proposes the court be explicit in declaring its ruling on abortion rights should never be construed to impact other protections.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
To some observers, that disclaimer is quite similar to the Supreme Court’s insistence in the case resolving the 2000 presidential election, Bush v. Gore, that the decision there was “limited to the present circumstances.”
Despite that caveat, lower courts have sometimes looked to the case for guidance. A couple of justices have cited it in individual opinions, although the court has yet to do so in a majority opinion.
While the chance of a post-Roe court going on a rampage against contraception or endorsing fresh bans on interracial marriage seem low, the implicit green light offered by overturning the half-century-old abortion decision could be too tempting for some state lawmakers to refuse.
“It’s a theoretical concern for the moment but I live in Texas and it’s not hard to imagine the Texas Legislature not being shy when it comes to pushing the envelope,” Vladeck said. “What a ruling like this does is get all of these politicians in red states to think: ‘What haven’t we done because we thought we couldn’t?’”
