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.
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