Justice Alito's leaked draft decision doesn't just overturn our right to a legal abortion. The language opens the door to the gates of Hell for all of our rights.
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Last week, following the horrifying leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson, Chief Justice John Roberts had a fortress-like security gate erected around the Supreme Court to shield the justices from protestors angry about the damage they’re about to unleash on the American people. That’s when you know Alito’s draft decision—bad enough on its face for ending the constitutional right to abortion and returning the rights of pregnant people to the whims of state legislatures—is much more vicious. It’s the Supreme Court’s roadmap to gutting the remaining rights of non-white, non-male, non-cis, non-Christian people. It’s also an invitation to states to pass the most retrograde laws imaginable, knowing they’ll eventually reach this very fascist-friendly Court.
To understand what’s on the chopping block and why, we have to first look at Planned Parenthood v. Casey, a 1992 abortion case. The leaked Dobbs opinion would overrule both Roe and Casey. The latter has language that has echoed down through other cases for the last 30 years and, unlike a lot of Supreme Court opinions, this is some lovely writing:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Sam Alito hates this language and hates the rights that flow from it. If he and the other conservative judges have their way, many of those rights will be gone.
Obergefell v. Hodges
Decided in 2015, Obergefell v. Hodges granted constitutional protections to same-sex marriage nationwide. It did so by saying that the Due Process Clause of the 14th Amendment applies and that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Before that, same-sex marriage was a patchwork of state-level laws, so the right for same-sex couples to marry was contingent upon where they lived.
Even without reading the leaked Dobbs opinion, we already knew that Alito wanted to get rid of Obergefell because he keeps saying so.
In 2020, the full Court declined to hear a case from Kim Davis, a county clerk in Kentucky who didn’t want to give same-sex couples marriage licenses because it offended her conservative Christian views. In complaining about the Court’s decision, Justices Thomas and Alito wrote that poor Kim Davis was “one of the first victims of this court’s cavalier treatment of religion” in Obergefell. They also complained that Obergefell endorsed a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment” and that the court “created a problem that only it can fix.”
Let me translate that for you: We shouldn’t have same-sex marriage rights because that makes some Christians sad, so we need to overrule Obergefell.
Moreover, Alito tipped his hand in the leaked Dobbs opinion. That opinion wouldn’t just overrule Roe. It would overrule Planned Parenthood v. Casey, a 1992 abortion case. Alito contends that decisions that rely on Casey are wrong, including Obergefell.
And finally, we have the fact that Sam Alito has publicly griped in a speech to the Federalist Society that if you say marriage is between a man and a woman, you’ll be called a bigot. If the shoe fits, Sam …
So what does it mean if Obergefell is overruled? In theory, it means that the right to get married goes back to the states. Legislatures can pass laws banning it, and referenda could be held to have the voters enshrine anti-marriage equality into the state constitution. You’d be married in one state, but not necessarily if you moved to another state. Much like abortion, rights would be contingent upon location—which are no rights at all.
Lawrence v. Texas
Basically, you can take everything that applies to Obergefell and apply it to Lawrence v. Texas as well. That case, decided in 2003, struck down a Texas law that criminalized same-sex sodomy. But it did much more than that: It said that the Due Process Clause of the 14th Amendment protected the right of people to engage in private sexual conduct without the government interfering.
Lawrence, much like Obergefell, relies on the right to privacy generally, but also the language from Casey specifically that says, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
Put plainly, Lawrence guarantees the right of people to engage in consensual sexual conduct as they see fit. This applies, of course, to both same-sex and opposite-sex partnerships, but sodomy laws were used far more often to attack LGBTQ people. If Lawrence falls, the government gets to criminalize what you do in the bedroom. Indeed, they not only get to regulate it, but they also get to criminalize it specifically against LGBTQ people while leaving heterosexual people free to engage in the same conduct.
Given the current moral panic around LGBTQ teachers, grooming, pulling books from schools, etc., it takes no imagination whatsoever to realize that conservative legislators will happily remove to regulate the sexual practices of non-hetero people.
Griswold v. Connecticut and Eisenstadt v. Baird
Griswold v. Connecticut, decided in 1965, literally gave us the right to privacy. There isn’t a right to privacy enshrined in the U.S. Constitution the way other rights, such as freedom of speech, are. Griswold struck down a statute banning the use of contraceptives and, in so doing, the Court found that there was a right to marital privacy within a “penumbra” of guarantees in the Bill of Rights. Put another way, the Court read several of our existing rights together and said that with those, we can infer a right to privacy.
Where Griswold held that married couples had the constitutional right to acquire and use contraception, it wasn’t until 1972 when the court decided Eisenstadt v. Baird that the right to use contraception was extended to unmarried couples.
Look at that timeline: It was only one year before Roe that unmarried people had the constitutional right to use the contraception of their choice.
Without the right to privacy, all the dominoes fall. No privacy means no bodily autonomy. That’s about the most terrifying future imaginable for millions of people. It doesn’t just unwind our existing privacy rights. It unwinds the entire concept of privacy as a constitutional protection going forward.
And don’t believe conservative commentators who say, “Oh, they won’t come for contraception or same-sex marriage because those things are broadly popular.” They are correct that birth control literally could not be more popular, with nearly every woman using it at some point in their life. But they’re deliberately lying to you when they tell you birth control isn’t next. Why? Because it’s already happening.
An Idaho state representative just said he’ll introduce legislation to ban Plan B and might try to ban IUDs. The same is true for Mississippi Governor Tate Reeves. Not content to notch a win in Dobbs and have the state’s 15-week ban upheld, Reeves has already stated that he’ll not only completely ban abortion—he’ll consider criminalizing IUDs. Blake Masters, an anti-abortion candidate running for the Senate in Arizona, has stated he will only vote to confirm judges who believe Griswold was wrongly decided.
Alito tipped his hand about this in the Hobby Lobby case, which held that Obamacare’s contraception mandate violated the religious rights of owners of a sprawling craft store empire with a bad habit of smuggling antiquities. In so holding, Alito wrote that such a decision was fine because the owners of Hobby Lobby believed that common birth control methods were actually abortifacients.
Birth control is absolutely, positively in grave danger.
Loving v. Virginia
Conservatives would like to insist that Dobbs does not inevitably lead to the undoing of 1967’s Loving v. Virginia, which struck down bans on interracial marriage. But the core principle of Alito’s leaked opinion is this: If something is an “unenumerated right” that isn’t already in the Constitution or wasn’t considered fundamental to liberty at the time the nation was founded, it isn’t constitutionally protected.
As Dahlia Lithwick pointed out at Slate, if this part of the Dobbs draft survives in the final opinion, there’s just no way to see how Loving survives. Interracial marriage was not considered fundamental to liberty 250-plus years ago nor is the right to marry anywhere in the Constitution.
Jonathan Mitchell is the conservative legal mind behind Texas’s SB8, the eight-week abortion ban. In an amicus brief Mitchell filed in the Dobbs case, Mitchell explicitly says, in relation to Loving, that “a supposed constitutional ‘freedom to marry’” is “nowhere to be found in the language of the Constitution. Loving is a cornerstone of American law and a case that righted a deep historic wrong, but it could disappear very easily.
Plyler v. Doe
The cases that are most vulnerable with Roe and Casey being overruled are obviously those that relate to privacy. However, Texas Governor Greg Abbott has already leveraged the logic, such as it is, in the leaked opinion, to get even more nativist and racist than normal.
Before Plyler v. Doe, decided in 1982, Texas had refused to expend state funds to educate non-citizens. The Court held that Texas could not prevent children of undocumented immigrants from going to public school in the state. Greg Abbott wants to be able to deny state educational funds to immigrants and force the federal government to pay for everything or in the alternative to be allowed to enforce their own highly restrictive state-level immigration laws.
You might wonder how this relates to the privacy cases. The answer is: It doesn’t. Instead, what’s going on here is that conservative states have learned from Dobbs that the conservatives on the Court don’t care about stare decisis—the principle that courts must adhere to prior precedent. This is an outcome-driven court, not a legally bound one. Why not take a shot at getting your conservative pals to undo four decades of law?
Special Bonus Horror
Remember that more than 20 of Trump’s lower court nominees weren’t even willing to state that Brown v. Board of Education was lawfully decided. Who’s to say that these lower court judges won’t begin ruling in favor of re-segregating schools across the country? This future is so, so grim.
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