“Take this seriously,” former US attorney Joyce White Vance wrote on Twitter. “If Roe falls, the rights that are higher in that branch of the tree are also vulnerable.”
Former Sen. Claire McCaskill (D-Mo.) sounded a similar note of alarm, warning that almost any rights based on privacy concerns are at risk if an opinion like Alito’s becomes law.
“They chased the privacy rights scale out of the Constitution,” McCaskill said on MSNBC. “There are a lot of decisions that are based on this right to privacy that stems not only from the Bill of Rights, but also from the 14th Amendment and the concept of freedom in this country.”
Alito has in fact included in his proposed notice a helpful list of rights arguably compromised by canceling deereven as conservative George W. Bush forcefully insisted that setting aside deer would not affect any rights other than abortion. The protections discussed in Alito’s opinion range from the right to same-sex marriage declared by the High Court in 2015 to the right to contraception established in 1965 to the right to enter into interracial marriage passed by the court in 1967.
After citing 14 of these cases, Alito declares them unrelated to abortion and asserts confidently that drawing deer of the fabric of American jurisprudence would pose no threat to any of these 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 in any way weaken them,” Alito wrote in the draft opinion published Monday by POLITICO. .
But many on the left simply don’t believe it. Among them is a prominent Delaware lawyer: President Joe Biden.
“It would mean that any other decision on the notion of privacy is in question,” Biden said in response to questions from reporters on Tuesday, just after Chief Justice John Roberts issued a statement confirming that the project obtained by POLITICO is authentic.
“If the rationale for the decision as published were to stand, a whole host of rights are at stake,” Biden added.
Biden specifically suggested that same-sex marriage could be outlawed again in some states if Alito’s view prevails in the High Court.
“Does that mean in Florida they can decide they’re going to pass a law saying same-sex marriage isn’t allowed, that it’s against the law in Florida?” said the president. “This is a fundamental change in American jurisprudence.”
Some court observers argue that Alito’s specific reasoning for dismantling deer is not the only thing in the opinion that jeopardizes other rights. Simply reversing the 49-year-old precedent means new rights, like same-sex marriage, could suffer the same fate.
“It is both the reasoning and the very existence of this opinion that leave me completely persuaded that this majority would be prepared to stop at Deer,” said Stephen Vladeck, a law professor at the University of Texas.
Vladeck also noted the recurring theme in Alito’s opinion that so-called rights that are not firmly established in American traditions are inherently more suspect than those with a longer history.
“Even though the project claims to be limited to abortion, it focuses on the pedigree of the law,” Vladeck said, adding that the same reasoning “would apply in other contexts where the court has recognized d other rights not sufficiently entrenched in contemporary American tradition to appease the court.
This would seem to put relatively recent decisions in the crosshairs, in particular Oberfell v. Hodgesthe decision on same-sex marriage handed down just seven years ago.
However, some legal experts don’t think the slippery slope is that slippery in practice, as many of the rights Alito cited are no longer very controversial.
“There is no national movement to overthrow Oberefellsaid Josh Blackman, a professor at the South Texas College of Law. “No jurisdiction in the country wants to ban interracial marriage.”
Some analysts have dismissed talk of the far-reaching impacts of the reversal deer as a classic “parade of horribles” argument – a tactic lawyers 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 stating that abortion “terminates ‘life or potential life'” and that none of the other rights cited imply such concerns. This may not be strictly true in the area of contraception, but Alito proposes that the court be explicit in stating that its decision on abortion rights should never be interpreted as impacting other protections.
“To ensure that our decision is not misunderstood or misinterpreted, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this notice should be construed as challenging precedents that do not relate to abortion.”
For some observers, this disclaimer is quite similar to the Supreme Court’s insistence in the case resolving the 2000 presidential election, Bush versus Gorethat the decision was “limited to the present circumstances”.
Despite this caveat, lower courts have sometimes looked into the case for guidance. A few judges have cited it in separate opinions, although the court has yet to do so in a majority opinion.
While the chance of a post-deer With the court raging against contraception or approving new bans on interracial marriage seem weak, the implied green light offered by reversing the half-century-old abortion ruling might be too tempting for some lawmakers in the country. state refuse.
“It’s a theoretical concern at 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 boundaries,” said said Vladeck. “What a decision like this does is make all these red state politicians think, ‘What did we not do because we thought we couldn’t?’
Myah Ward contributed to this report.