‘A threat to other historic rights’
US SUPREME Court Justice Samuel Alito’s draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts.
The draft ruling, disclosed in a leak that prompted Chief Justice John Roberts to launch an investigation, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v Wade ruling that legalised the procedure nationwide. The draft’s legal reasoning, if adopted by the court by the end of June, could threaten other rights that Americans take for granted, according to University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion.
“The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognised by the Supreme Court,” Sepper said.
The court’s 6-3 conservative majority has become assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary. The Roe decision recognised that the right to personal privacy under the US constitution protects a woman’s ability to terminate her pregnancy. According to Alito, the right to abortion recognised in Roe must be overturned because it is not valid under the Constitution’s 14th Amendment right to due process.
Abortion is among a number of fundamental rights that the court over many decades recognised at least in part as what are called “substantive” due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015.
Though these rights are not explicitly mentioned in the constitution, they are linked to personal privacy, autonomy, dignity and equality. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.
Alito reasoned in the draft that substantive due process rights must be “deeply rooted” in US history and tradition. Abortion, he said, is not. Other personal rights including contraception and same-sex marriage may be found by conservative justices to fall outside this framework.
Alito’s opinion resembles his dissent in the court’s same-sex marriage ruling in which he said the 14th Amendment’s due process promise protects only rights deeply rooted in America’s history.
Some conservative commentators have suggested that Alito has provided a road map for future attempts to eliminate other guaranteed liberties.