The implications for the law of overruling Roe will be enormous. Justice Alito’s draft opinion for the Court says that Roe was “egregiously wrong” because it protects a right that was not included in the text of the Constitution, was not protected by the original meaning of the Constitution, and was not traditionally safeguarded as a constitutional right.
But by that reasoning, countless other Supreme Court decisions protecting basic aspects of privacy and autonomy were wrongly decided as well. For example, it was not until 1965, in Griswold v. Connecticut, that the Court held that the Constitution protects a right to purchase and use contraceptives. It, too, is not a right in the text of the Constitution or contemplated when the document was ratified or that was historically protected. I expect that after Roe is overruled some states will quickly pass laws prohibiting types of contraceptives that act after conception, like the IUD and the morning-after-pill. Under Justice Alito’s reasoning, those laws too would be constitutional.
Or consider the right to marry. It wasn’t until 1967, in Loving v. Virginia, and 2015, in Obergefell v. Hodges, that the Court protected a constitutional right to marry striking down laws prohibiting interracial marriage in the former case and laws forbidding same-sex marriage in the latter. But this right cannot be found in the text, the original meaning, or tradition.
Likewise, the Court has protected the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right of competent adults to refuse medical care, and the right of consenting adults to engage in same-sex sexual activity under the liberty of the due process clause. These rights, too, cannot be justified under the Court’s approach in Justice Alito’s draft opinion.
Simply put, the Court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades. These are fundamental aspects of liberty that warrant constitutional protection. (bron)