Friday, June 24, 2022

The No-Longer-Just-Leaked Opinion--Constitutional Nonsense Revisited (Part 4)

The now-official opinion by Justice Samuel Alito for the Supreme Court in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and eliminating any right to choose an abortion, repeats what we've seen previously when the draft was leaked:
As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.

As discussed in previous posts on New York Court Watcher, this argument is utter nonsense and dangerous. (See The Leaked Opinion--Constitutional Nonsense Revisited [Part 1], in which we looked at "it's-not-in-the-text" of the Constitution; [Part 2], in which we considered "deeply rooted in this Nation's history and tradition;" and [Part 3], in which we examined Alito's assurance that his opinion applies only to abortion and that there's no reason to be concerned about any other rights.)

To recap very briefly, as explained in Part 1, most fundamental rights are nowhere mentioned in the text of the Constitution. The document is absolutely not a catalog of rights. It nowhere mentions, for example, the right to marry, the right to be intimate with one's partner, the right to have children, the right to have a friend, etc., etc., etc. Indeed, Alito's argument--now the argument of the Court--was prominently feared by the Framers of the Constitution and nearly defeated adding a Bill of Rights: the fear that mentioning any rights might be the basis for denying others not mentioned. That fear has now been realized and forms the primary basis in the Court's decision today to reject the right to choose an abortion.

As explained in Part 2, the secondary argument, relying on the country's history, could be used to support racial segregation and discrimination against women, as well as the criminalization of interracial marriage, the use of birth control, and gay and lesbian intimacy. All of those were an entrenched part of this Nation's history and tradition from the time of its founding until overruled by the Court in more recent times.

And in Part 3, the notion that this opinion applies only to the right to an abortion and to no other right was shown to be as much nonsense as the text and history arguments. Those were the same arguments made to the Supreme Court against any right to use birth control and to equal protection for women. The same arguments to uphold criminal laws against gays and lesbians, including against same-sex marriage. Indeed, these were the same arguments to uphold racial segregation and criminal laws against interracial marriage. Are these arguments now being revived, but only to be applied against rights the current conservative majority of the Court dislikes?

Well, Justice Thomas for one has made clear where the arguments embraced by the Court necessarily take it:
in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [the right to use contraceptives], Lawrence [the right to engage in same-sex intimacy], and Obergefell [the right to marry for same-sex couples]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.

Of course, Justice Thomas didn't mention Brown v. Board of Education [outlawing racial segregation], Loving v. Virginia [invalidating laws against interracial marriage], or Reed v. Reed [recognizing equal protection for women]. But all of those decisions, and many others, similarly rejected arguments that the Court majority applied today to uphold restrictions on abortion and to reject any right to choose. 

Justice Alito's introductory and concluding assertion is indisputably correct: Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Yes. But the very same was said--and in some cases can still be said--about racial integration, interracial marriage, women's rights, gay rights, consensual adult sex, contraceptives, etc. But also about gun rights, campaign finance, affirmative action, etc. Does the existence of sharply conflicting views really mean that the Supreme Court should leave those matters to the states?

Regardless of one's views about abortion--and, as I believe is undeniable: there are profound interests on both sides--the arguments applied by Alito, and now by the Court majority, to justify denying any right to choose are nonsense. And beyond that, if they are to be taken seriously, they place other rights recognized in Supreme Court landmarks in jeopardy.