Will The Leaked Alito Draft Set New Precedent to Dismantle Hard Fought Civil Liberties?

The fight for equality, privacy, and autonomy for the LGBTQIA+ community is far from over. The work towards a more perfect union which celebrates our diversity as an asset is never ending but will seem Sisyphean if the work of the last half century is dismantled before our eyes with the overturning of Roe v. Wade.

The intersectionality of civil rights’ protections for safe abortion access, same-sex marriage, and anti-racism is in stark display before the mainstream media. Politico released a leaked draft opinion, ostensibly written by Associate Justice Samuel Alito for the majority of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization.

A person familiar with the process said four other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett —voted with Alito in the conference held among the justices after hearing oral arguments in December.

Importantly, two of those justices, Kavanaugh and Coney Barrett would not have been part of this court but for the Republican’s court packing scheme which gave them the conservative majority they needed to begin dismantling Constitutional protections.

If this opinion stands, young women and those capable of reproduction will grow up in a world with limited control over the choice of whether, when, and where they give birth.

Our community knows this is not just a women’s rights issue, it is a bellwether issue that portends further erosion of civil protections.

Same sex couples may face more scrutiny for marriage and family planning. Transgender people are still fighting for protections and access to gender affirming care. This unprecedented reversal will set back so much progress, all depending on what state you happen to live in.

The Case

Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) are cases which have, for 50 years, defined the legal floor for protections for accessing safe, legal abortions.

At the time of Roe, 30 states prohibited abortion at all stages except to save the life of the mother.

At issue is that Mississippi passed the Gestational Age Act which prohibits someone from inducing an abortion if the probable gestation age of fetus is greater than 15 weeks.

In the leaked opinion, Alito, a George W. Bush appointee, declares a necessity to overturn precedent because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” In developing this opinion, Alito takes issue with rights that are not explicitly mentioned in the Constitution, not “deeply rooted in this Nation’s history and tradition” and not implicit “in the concept of ordered liberty” (citing to Washington v. Glucksberg, dealing with a ban on assisted suicide).

By that same logic, neither same-sex marriage (Obergefell) nor the right to anal sex free from government overreach (Lawrence) are rights explicit in the Constitution, nor rooted in history, nor implicit in the concept of ordered liberty.

Without a hint of irony, Alito warns of the need to exercise “utmost care” lest the “liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”

Alito then begins a one-sided “historical” analysis of common law abortion, concluding that abortions have often been made illegal after the archaic concept of “quickening.” Paired with this analysis, is a recognition that in 1868 (when the 14^th Amendment was passed), 28 of the 37 states made abortion after this “quickening” a crime – though what that has to do with a pre-viable fetus even Alito does not attempt to explain.

Alito also likes to emphasize at the time of Roe’s passage, 30 states prohibited abortion except to save the life of the mother. Alito underscores that there was “no support” for the right to an abortion, not even “learned treatise” but then immediately contradicts himself by mentioned law review articles of the same period which did support such a right.

Alito later goes on to try to differentiate between “liberty” and “ordered liberty” without providing any legal citation. In law, we call this dictum, and it’s nothing more than a justice’s own personal opinions. The types of personal opinions Alito goes to great lengths to complain about “other” judges incorporating into their legal opinions.

In dismissing arguments that rely on Lawrence and Obergefell, Alito next complains “attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.” Too much for whom? Under what authority? Again, Alito provides no legal citation for his personal belief.

Next, Alito declares that to support such principles would necessarily license “rights to illicit drug use, prostitution, and the like.” Implicitly, what Alito is doing is what he accuses liberals of doing. He is substituting his own judgment for that of the court and of legal precedent because he doesn’t like the outcome of the application of such liberty principles. Side note, sex work is real work. Legalize it.

In speaking about the need to contribute to “the actual or perceived integrity of the judicial process,” Alito somehow finds the hubris to caution against “judicial hubris” then attempts to define “precedent” by citing a personal essay included in a for-profit book published by Gorsuch. Like really?

In overruling Roe and Casey, Alito claims that those opinions didn’t ground their decisions in “text, history, or precedent.” The issue is that they did, Alito just didn’t agree with its sufficiency.

Weirdly, one of Alito’s weakest lines of reasoning to overturn Roe is that it “looked” like legislation – as if court’s have not issued bright line and factors tests for any number of opinions in various settings.

Later, Alito asks, again without a hint of irony, “On what ground could the constitutional status of a fetus depend on the pregnant woman’s location” Even though the crux of Alito’s argument is that the states should be able to decide the constitutional status of a woman based on her location.

In concluding his need to overturn court precedent, Alito declares that his decision would somehow advance the “even-handed, predictable, and consistent development of legal principles.”

All in all, zero out of 10, would not recommend packing the court with a conservative majority and then claiming the legally superior position of “states’ rights.” As when we discuss the Civil War, the operative question is: A states’ right to do what?