The Middletown Press (Middletown, CT)

Court’s draft decision moves away from liberty

- By Chris Mattei Chris Mattei is a partner at Koskoff, Koskoff & Bieder in Bridgeport and the former chief of the Financial Fraud and Public Corruption Unit for the United States Attorney’s Office in Connecticu­t.

Last week, the United States Supreme Court confirmed that a leaked document was, in fact, a draft majority opinion overturnin­g Roe v. Wade. Justice Samuel Alito authored the draft, declaring that a woman’s right to make the most personal of decisions — whether to bear a child — is not protected by the United States Constituti­on because no such right is “deeply rooted in this Nation’s history and tradition.” The court has not issued a final decision, but the strong likelihood is that Roe will fall in June.

Over the past hundred years, the Supreme Court presided over an expansion of American freedom. This expansion was grounded in the 14th Amendment and the idea that if American liberty means anything, it means that no government can dictate how Americans resolve the most fundamenta­l decisions concerning their own personal existence.

By the time the Supreme Court decided Roe in 1973, it had already establishe­d that the Constituti­on prevents the government from invading Americans’ rights to make intimate, personal decisions about the most important aspects of their lives. This realm of personal autonomy included parental decisions concerning the education of their children; an individual’s decision to marry a spouse of a different race; a married couple’s decision to use contracept­ion within their marital relationsh­ip; and an individual’s decision to refuse medical treatment.

In this context, Roe’s result was not surprising. Similar to earlier cases, the court found that women had a protected liberty interest in the most personal and intimate decision many women ever face — whether to become pregnant and bear a child. Since Roe, the Supreme Court has extended these Constituti­onal protection­s to gay Americans and their relationsh­ips.

The Constituti­on does not expressly mention any of these rights, but few Americans would feel free without them.

In his draft opinion, Justice Alito “emphasize[s] that our decision concerns the constituti­onal right to abortion and no other right.” He acknowledg­es that the right to abortion establishe­d in Roe falls within the same realm of personal liberty as many other rights the court has identified, but Roe, he says, is different because abortion destroys a fetus. This revelation that abortion involves the terminatio­n of a pregnancy is nothing new. Both Roe and its follow-on case, Casey, wrestled with the serious moral and legal implicatio­ns of abortion for both the woman and her fetus. In those cases, the court’s answer was not to discard the woman’s constituti­onal protection­s altogether, as Alito now proposes, but to permit certain state regulation of abortion as long it did not unduly burden a woman’s exercise of that fundamenta­l right. This has been the law for nearly 50 years.

So, what’s really going on here?

Decades of jurisprude­nce have expanded freedom for men and women, but Roe is the only case among those precedents that recognized a need for constituti­onal protection unique to women. Roe and the Constituti­on empowered women to participat­e fully and equally in the life of the nation by placing in their capable hands the decision of when and whether to bear a child. The court’s acknowledg­ment that the rights of American women are not contingent on whether men derive the same benefit is central to Roe. This is what Justice Alito would undo.

Notwithsta­nding Justice Alito’s protests, this draft opinion is about much more than abortion. Justice Alito’s reasoning takes aim at the entire concept of personal liberty. According to the draft opinion, the Constituti­on protects only those implicit rights that are “deeply rooted in this Nation’s history and tradition.” You don’t have to be a constituti­onal lawyer to recognize that Justice Alito is putting 100 years of Supreme Court jurisprude­nce concerning contracept­ion, interracia­l marriage, gay rights, parental rights and medical freedom back on the table. When the challenge to those rights inevitably comes, an ascendant conservati­ve wing of the Supreme Court will decide anew whether such rights fit neatly within its view of the “Nation’s history and tradition.”

The court may back away from this precipice. For much of its history, the court has helped us move — slowly and haltingly — toward a shared experience of freedom and citizenshi­p. Justice Alito’s draft opinion, however, represents the first step in a retrenchme­nt that would deprive Americans of the right to pursue their dreams on equal footing as citizens in full. He would make the court an instrument of division at a time when our sense of national unity is already badly frayed.

That Roe is in peril reminds us that nothing is settled in a democracy. The Constituti­on has guaranteed the personal liberty of American women for nearly 50 years. If the court adopts Justice Alito’s opinion, that liberty will be stripped away. The court would hold that our Constituti­on provides women with no refuge from forced pregnancie­s, forced births and all the attendant risks, criminal investigat­ions following miscarriag­e,

If American liberty means anything, it means that no government can dictate how Americans resolve the most fundamenta­l decisions concerning their own personal existence.

among other degradatio­ns.

Our Constituti­on does not forsake American women in this way. Their liberty, interest in the integrity of their own bodies and the sanctity of their own personal choices are the same as anyone’s. If the majority of the Supreme Court tells us that our great Constituti­on is too impoverish­ed to protect those liberties, it will do great damage to the credibilit­y of the court and our collective freedom.

That will be a shameful day in our nation’s history, but it will not be the last day. The centuriesl­ong work of bringing all Americans safely within the Constituti­on’s protection will continue. That work belongs to all of us.

 ?? Hearst Connecticu­t Media file photo ?? Chris Mattei meets with the Hearst Connecticu­t Media editorial board in 2018.
Hearst Connecticu­t Media file photo Chris Mattei meets with the Hearst Connecticu­t Media editorial board in 2018.

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