Wednesday, May 11, 2022
By Nancy C. Marcus*
On May 2, 2022, a draft Supreme Court opinion by Justice Alito was leaked to the public, signaling that the Court is at the precipice of stripping away longstanding constitutional protections for privacy and reproductive autonomy. Widely decried for the devastating harms it would render in peoples’ lives, the opinion should also be condemned for its dangerous rewriting of constitutional law. The opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, emphasizing that prior to Roe, some states had criminalized abortion, the opinion indicates that acts once deemed criminal cannot be subsequently recognized as constitutionally protected. Second, the opinion describes the Fourteenth Amendment as protecting only those specific acts explicitly recognized as rights “deeply rooted” in tradition. However, the opinion then focuses on (its version of) pre-1973 history to conclude that tradition demands defying nearly fifty years’ of precedent and reliance on Roe.
Under the first premise, laws struck down for criminalizing constitutionally protected conduct could be reinstated and deemed constitutional after all. Even Supreme Court decisions striking down unconstitutional interracial marriage bans, birth control bans, and bans on private intimate conduct between adults could be overruled, and those bans reinstated. Conduct once criminalized would be virtually exempt from subsequent constitutional protection. It could become nearly impossible to successfully challenge unconstitutional criminal laws in court.
As to the second premise, while the opinion decries unenumerated privacy rights as unprotected, constitutions are by their nature intended to be broad frameworks, not comprehensive lists explicitly detailing every protected right. The tradition of honoring unenumerated rights is traceable to early declarations of inherent, inalienable rights: Alexander Hamilton even felt a Bill of Rights unnecessary because unenumerated rights were understood to be reserved to the people. That said, the Ninth Amendment itself explicitly recognizes the existence of unenumerated rights reserved to the people.
Regarding privacy rights specifically, Samuel Warren and Louis Brandeis co-authored an 1890 “Right to Privacy” Harvard Law Review article documenting the evolution of privacy rights from early property protections to personal autonomy. Justice Brandeis later wrote that the Constitution’s drafters “conferred, as against the government, the right to be let alone—the most comprehensive of rights.” More recently, the Court in Griswold v. Connecticut described the right to privacy as “older than the Bill of Rights,” citing numerous cases back to 1886. However, with Griswold describing contraceptive rights in terms of Ninth Amendment unenumerated rights, the Bill of Rights’ penumbras, and Fourteenth Amendment due process, if Alito’s draft Dobbs opinion, rejecting that same language in Roe, stands, the right to birth control would be hanging by a thread.
Those Justices joining Alito’s opinion would limit substantive due process protections to only “deeply rooted” fundamental rights. However, requiring that abortion itself, as opposed to broader principles of autonomy, be a right explicitly “deeply rooted” in tradition before being protected conflicts with precedent protecting marital and reproductive rights in terms of broader liberty and autonomy principles. Those cases acknowledge a right as fundamental if grounded in “a principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” Alito’s opinion repeats the mistake of Bowers v Hardwick, later overruled by the Court, for improperly framing the right at stake in that case in absurdly narrow “right to homosexual sodomy” terms rather than in the broader principles of autonomy and privacy. As the Court explained in overruling Bowers, “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward” and fails to appreciate the full nature of the liberty at stake.
Alito’s narrow formulation of liberty is constrained by prejudices of the past. Under his approach, interracial marriage and contraception would be unprotected if those specific forms of conduct had not previously been explicitly named as fundamental rights rooted in tradition. That approach fails to honor Justice Frankfurter’s admonition in 1949 that “[g]reat concepts like . . . ‘liberty’ were purposely left to gather meaning from experience,” because those “who founded this Nation knew too well that only a stagnant society remains unchanged.” As Thomas Jefferson warned, “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Alito’s opinion must not become the law of the land, a foundation for stripping away fundamental liberties and rights upon which Americans in myriad contexts have come to rely.
*A law professor at California Western School of Law, Nancy Marcus teaches a course on law and sexuality and is the former state public policy director for the National Abortion Federation.