Roe draft opinion raising fears that more rights will fall


NJ Spotlight News

May 5, 2022: The U.S. Supreme Court behind a fence that was erected this week


The leaked draft opinion out of the U.S. Supreme Court that would overturn Roe v. Wade continues to draw strong reactions across New Jersey and the country, and it’s not just about abortion rights.

The draft written by Justice Samuel Alito on behalf of an apparent majority of the court calls for the end to federal abortion rights that were written into law for the last half-century. He argues instead that they must be decided by individual states.

Yet in his wording, Alito also appears to take aim at other rights that previous courts have deemed constitutional.

“Roe, however, was remarkably loose in its treatment of constitutional text,” Alito wrote. “It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”

Alito also argued rights written in the Constitution that are “deeply rooted in the nation’s history in tradition” are the only ones that “deserve its protections.”

Opening door for other restrictions

While Alito’s leaked opinion is a draft and is subject to change, some legal experts and social-justice advocates say that this wording can open the door for other rights to be potentially restricted if challenged in the Supreme Court — especially since rights such as the use of contraception or the ability to marry whomever you want are also not mentioned in the Constitution.

“If your vision of constitutional interpretation begins with the idea that the most important thing is to simply read the text and that we should not expand beyond what is in the text, then the list of rights that people hold dear that should not be protected by the Constitution is much longer than the right to access abortions,” said Kimberly Mutcherson, co-dean of Rutgers University Law School.

“To read the actual opinion and to see how intellectually not rigorous it was, and to see how many gaps there were in Justice Alito’s analysis — that was even harder to take, frankly, because this is a big, big deal. And he sort of blindly skips over the equality issues,” she said.

Democrats and abortion rights advocates have been called alarmist from both sides of the aisle for years for warning that abortion access or marriage equality needed to be specifically codified, instead of existing as rights only allowed through Supreme Court decisions as they currently stand.

To the right, march

But the highest court in the land has become increasingly conservative, with some right-leaning justices stopping short of calling Roe v. Wade “settled law” during their confirmation hearings — which is more finite than saying Roe is “precedent.”

Coupled with Alito’s draft decision on Roe, as well as his explicit disagreement with marriage equality in his Obergefell v. Hodges opinion, Mutcherson and others said that being alarmed is warranted.

Former New Jersey State Bar President Tom Prol said it’s “not simply about abortion rights,” because Alito “has in his line of sight all these other personal liberties.”

Prol, who is a founding member of the marriage-equality group, Garden State Equality, was part of the push to have marriage equality codified in New Jersey following a trial court case once Windsor v. United States opened the door for same-sex marriage.

“So we recognize that that held on by a tenuous thread. Well, it looks like that’s where the U.S. Supreme Court is heading. They’re trying to undo all these well-established, well-settled precedents,” he said.

Is the jury still out?

That is yet to be determined, of course, and Alito wrote in his leaked draft that certain other rights wouldn’t be impacted by the decision to overturn Roe. He cited Supreme Court cases that provided the right to use contraception, to provide marriage equality and to allow interracial marriages — which legal experts say are all rooted in the right to privacy, which Alito wrote doesn’t exist in the Constitution.

“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 undermine them in any way,” Alito said in his draft.

But Mutcherson called Alito’s words “disingenuous.”

“What’s really incredibly laughable about that is that he starts his analysis by saying abortion doesn’t appear in the Constitution. Well, neither does contraception. Neither does marriage. Neither does the right to form a family or the right to procreate,” said Mutcherson.

Liberty in the crosshairs?

Prol said that because Alito — and possibly Justices Gorsuch, Kavanaugh and Coney Barrett — would undo Roe’s “well-settled precedent,” that Obergefell and other liberties were certainly at risk. He noted that former Sen. Jeff Sessions (R-AL) told then-Judge Alito during his Supreme Court confirmation hearing in 2006 that Americans were worried he would be an activist judge.

“He has now become that. He has overturned over half a century of well-settled precedent. He has promised literally out loud to get rid of Obergefell and Windsor,” Prol said.

Mutcherson said that other cases like the Loving v. Virginia decision from 1967 that legalized interracial marriages are less controversial, so the Supreme Court justices might not find them “worth” challenging. But she said contraception could certainly still be on the table — if Burwell v. Hobby Lobby (2014), which allowed the company to deny providing contraception because of religious beliefs since it’s a private entity, was any indication.

Abortion-access advocates and politicians have warned of the disproportionate impact that overturning Roe will have on Black and brown people, as these populations suffer from higher maternal mortality rates and could benefit from life-saving abortions or because their access to traveling for abortions will be slim.

New Jersey does have protections in place for abortion rights and marriage equality, although social-justice advocates say that the former could be strengthened because abortion is still inaccessible for many low-income and rural New Jerseyans. Other blue states like California are expected to follow suit and protect abortion rights, while others are expected to limit them extremely.

The final decision on Roe could come in the next two months, but what will happen to other civil rights will remain uncertain. For now, the threat to abortion access is exigent.

“The road ahead is a really scary one … As someone who has a teenage daughter, there’s something really striking to me that she is now going to be entering the reproductive age of her life without certainty that if she becomes pregnant and does not want to stay pregnant, that she can have access to abortion. That is no longer something that women and other pregnant people are going to be able to take for granted,” Mutcherson said.

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published this page in News and Politics 2022-05-06 03:24:33 -0700