It cannot be overstated just how earth-shattering Alito’s leaked Supreme Court opinion is - not simply for its dismantling of womens’ bodily autonomy (though that in itself is egregious enough) but also for how it goes about overturning the foundational precedent Roe v. Wade and Planned Parenthood v. Casey are built on: the right to privacy and the due process clauses as outlined in the 14th Amendment.
Roe and Casey work on the precedent that the “privacy” of the 14th Amendment can be applied to a woman’s person medical decisions. This is what’s called an “unenumerated right,” or a right that is implied to exist based off of what other laws say. For instance, the right to a public defender isn’t stated in the constitution at all, but was implied to exist because of a Supreme Court decision in 1963. Alito’s opinion however, asserts that a right must “must be deeply rooted in this Nation’s history and tradition.”
Y’see, as an Originalist (like Amy Coney Barrett), Alito is concerned with the original public meaning of a law at the time it was written.
To an Originalist, since the 14th Amendment was drafted in 1868 - a time when most states criminalized abortion - to apply a “modern” interpretation of privacy to abortion like Roe did twists the 14th Amendment beyond what the drafters would have ever intended or even considered, which to Alito and other Originalists like him is Constitutional anathema.
So why is this legalese important?
Simple: while Alito insists that Roe v. Wade is a special case because abortion is a unique issue, that doesn’t change the fact that his Originalist interpretation of the 14 Amendment will topple that privacy precedent, setting a brand new legal precedent that can be applied to a huge number cases that were also decided on the 14th’s Privacy and Due Process clauses. Rights that may also lack the “history and tradition” that Alito so treasures.
What other unenumerated rights does this endanger? To name a few:
Interracial marriage (Loving v. Virginia)
The right to a public defender (Gideon v. Wainwright)
“Miranda Rights,” or a person’s legal rights being read to them by police during arrest (Miranda v. Arizona)
The right to buy and use contraceptives (Griswold v. Connecticut)
The illegality of sodomy laws (Lawrence v. Texas) Â Â
Same-sex marriage (Obergefell v. Hodges)
Overruling Roe and Casey isn’t solely a horrible miscarriage of justice for women’s reproductive rights. If the legal logic of Alito’s draft carries into the Court’s final decision, then the legal precedence that toppled it will be legitimized and could theoretically be applied to…well. Pretty much all modern civil rights.
Now, Alito assures us that Roe is a special case and that other decisions such as interracial marriage (Loving) or contraception (Griswold) are in no danger of being overturned. They are decided law, so we have nothing to worry about.
Except…that’s exactly what a few recent Supreme Court nominees said about Roe, as well.
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