Conservatives continue to lie to the public about the implications of Alito’s opinion
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Leah Litman and Steve Vladeck have a good piece about how despite the tacked-on pro forma disclaimers Alito’s opinion clearly says that all of the privacy and sexual autonomy cases were wrongly decided:
The leaked copy of Justice Samuel Alito’s draft majority opinion overruling Roe v. Wade has unleashed a wave of concern about what the opinion would mean, not only for people who depend on the availability of abortion care but also for people who depend on other fundamental rights related to the 1973 ruling.
As President Joe Biden and legal commentators pointed out, Alito’s stated reasons for overruling Roe could seemingly be applied to overrule other precedents ranging from Obergefell v. Hodges, which recognized a right to marriage equality, to Lawrence v. Texas, which recognized a fundamental right for intimate relationships between consenting adults including adults of the same sex, to Griswold v. Connecticut, which recognized a fundamental right to contraception.
While conservative commentators have sought to minimize these fears, one of their main responses has exposed Alito’s draft majority opinion as nothing more than a lawless exercise of political power. They now claim that the court wouldn’t overrule those other precedents because, among other things, those other precedents are “politically popular.”
This, to be clear, is not a legal distinction. It’s merely a statement that public opinion and politics will dictate what the court’s conservative supermajority thinks it can get away with—respect for the law and neutral principles be damned.
The leaked draft opinion seemingly puts several other constitutional rights squarely in the court’s crosshairs. As Mark Joseph Stern argued, Alito’s broadside attack against “unenumerated rights” that aren’t “deeply rooted” in American history could be deployed against the right of same-sex couples to be intimate or to get married. Like the right to decide to have an abortion, the right of same-sex couples to be intimate or to get married isn’t explicitly mentioned in the text of the Constitution. There aren’t state constitutional provisions or state or federal court cases from the 1800s or early 1900s recognizing those rights either. And these other opinions, like Roe and Planned Parenthood v. Casey, are reasoned at a “high level of generality,” invoking concepts like dignity, destiny, and defining one’s own existence.
The most obvious problem with assurances that Alito’s logic won’t be applied to other precedents because they’re popular is that Roe is also popular!
This article led to this amusing exchange between Vladeck and National Review legal commentator Baseball Crank:
Dan can correct me if I’m wrong, but his critique depends entirely on the point that those other precedents can’t be overruled until states directly challenge them.
That’s obviously true, but how can one look at the current state of play and *not* see that as seriously possible? https://t.co/BT6iZHw25Y— Steve Vladeck (@steve_vladeck) May 11, 2022
And my understanding is that there’s already a draft bill in Louisiana that would outlaw the use of IUDs. Does @baseballcrank think bills like that don’t count? Or that they won’t pass? Either way, bills like that seem to validate — not undermine — @LeahLitman and my argument.— Steve Vladeck (@steve_vladeck) May 11, 2022
(3) the fact that conservatives elide the difference between abortion and contraception by insisting that some common methods of contraception (IUDs & emergency contraception) are abortifacients;— Leah Litman (@LeahLitman) May 11, 2022
(5) a statement by the MS governor saying he won't rule out criminalizing contraception and overruling Griswold.https://t.co/O5tyG2IFl9— Leah Litman (@LeahLitman) May 11, 2022
jk; one last thing. if you're wondering whose SCOTUS predictions you should take more seriously, may i recommend a compare/contrast: pic.twitter.com/tylVuHID1E— Leah Litman (@LeahLitman) May 11, 2022
For some reason I fail to find Mr. Crank’s claims that the logic of Alito’s opinion is irrelevant because Republican legislators would never do what they’re already doing reassuring!