The Mercury

‘A threat to other historic rights’

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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.

 ?? EPA ?? ABORTION rights proponents at a rally against a leaked draft opinion by the US Supreme Court suggesting the US would overturn the landmark Roe v Wade decision, in Atlanta, Georgia.
EPA ABORTION rights proponents at a rally against a leaked draft opinion by the US Supreme Court suggesting the US would overturn the landmark Roe v Wade decision, in Atlanta, Georgia.

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