December 3, 2022

Roe v Wade: It’s impossible to wall off a potential reversal from landmark marriage and contraception rulings

5 min read


Justice Samuel ElliottIn the draft of his opinion that Roe v. Reversing WadeIt seeks to make clear that it does not necessarily affect other decisions, such as the right to marry a person of a different race or homosexuality and the right to contraception, which are some of the same threads of legal reasoning. Rely on as a sign of abortion rights.

In the draft, Elliott states that what Roe, and Casey’s 1992 follow-up vs. Planned Parenthood, “rapidly distinguishes” from other issues is that abortion destroys “possible life.”

“None of the other decisions made by Roe and Casey were involved in the important ethical question of abortion,” he said. “They do not support the right to abortion, and by the same token, our conclusion that the Constitution does not grant such a right does not in any way weaken them.”

But critics of the draft decision will find solace in Elliott’s words, which try to prevent abortion with everything.

He believes that if Elito’s opinion is finally put forward, it would represent an early salo to target other rights based on privacy and liberty. It will also destabilize the law by introducing the legal theory of staring judgments – the notion that the courts should follow their precedents even if they do not agree with them, to protect the harmony of the law – a dead body. Letter. And that would raise new questions about court politics.

Liberal Justice Sonia Sotomayor raised these concerns in an oral argument in December. He noted that in Casey’s case, the court ruled that “inherent in our structure” is the understanding that “personal decisions are made by individuals and states cannot interfere with them.” He then filed lawsuits against the right to contraception and the right to marry, saying “none of this is written into the constitution.”

“They have everything,” he said.

In 1967, for example, the court ruled in Long v. Virginia, which included the right to marry a person of a different race. The court said “the freedom to marry or not to marry, the second generation lives with the individual, and the state cannot violate it.” The court relied on parts of the living room to decide Casey.

And in 1965 the court granted Griswold v. Connecticut ruled in favor of the right to receive contraceptives. In opinion 7-2, the court said that the Constitution protects the right to marital privacy against state restrictions on contraception. This general right to privacy was also cited in Roh and Casey.

Then Sotomyir turned to politics: “Now why do we say that Rowe and Casey are so unusual that they should be overthrown?” He noted that the sponsors of the Mississippi law said they were doing so “because we have new judges in the Supreme Court.”

“Will this institution escape the stench that gives the public the impression that the constitution and its teachings are merely political actions?” He asked.

Shortly afterwards, Justice Amy Connie Barrett jumped up and asked Mississippi’s lawyer, “Will the decision in your favor summon any of the cases that Justice Sotomire is pointing to?”

Mississippi Solicitor General Scott Stewart said none of them would do so because no one was “involved in a meaningful end to human life.”

But legal experts doubt the outcome will be immediate.

They point to another part of the draft of Elito’s opinion. He noted that the Biden administration relied on decisions such as Lawrence v. Texas (right to engage in private, consensual sex) and O’Brien v. Hodges (same-sex marriage) in Roe’s defense.

“These attempts to justify abortion and to define one’s ‘concept of existence’ through appeals for a broader right to self-determination prove to be overwhelming,” Alito wrote. He said such standards could “generally” license “basic” drug use, prostitution and similar rights.

“None of these rights are claimed to have deep roots in history,” he said.

“Rowe’s decision was not made in space. It is part of a broader understanding of the constitution that recognizes the right to privacy in text that does not explicitly recognize it,” said CNN Supreme Court analyst Steve. Vladik, a professor at the University of Texas School of Law, said.

“If the majority of judges are no longer willing to recognize such a right in the context of abortion – in fact, those who believe that the court should never have recognized it – then it raises questions about these other rights as well.” Yes, “he said.

When the case was decided in 2015, Alito himself voted against same-sex marriage.

“The constitution does not say anything about the right to same-sex marriage, but the court is of the opinion that the term ‘liberty’ encompasses this right in the Dave Process clause of the 14th Amendment,” he said. Disagreeing with the language. Crying over

Some believe that the Roe draft opinion is a roadmap for future challenges to civil rights decisions.

Leah Litman, a professor at the University of Michigan Law School, said: “Leaving it to its own devices, Justice Elito will gladly welcome the challenges of many of the Court’s fundamental rights decisions.” “Any criticism he makes of Roe – it is not in the constitutional text. There are no preliminary state constitutional provisions recognizing this right or preliminary rulings of a state or federal court – apply to these other rights, and if they can. So he will happily destroy them. ”

Jim Aubergfeld, a leading plaintiff in the same-sex marriage lawsuit, who is now trying to enter politics, said in an interview with CNN that he was “intimidated” by the draft.

“It scares me in the daylight because many of the rights we enjoy – especially the LGBTQ + community – are based on the right to privacy under the 14th Amendment, the right to privacy,” Obergfel said. “It simply came to our notice then. “And the belief that if the Constitution does not specifically outline this right, the right to privacy, then all the rights that are guaranteed to us based on the right to privacy under the 14th Amendment are in jeopardy.”

And while Elito and Mississippi’s lawyers were acting cautiously, a lawyer wrote a briefing to a court friend on behalf of Texas Right to Life.

Jonathan F. Mitchell – the architect of the six-week ban in Texas – did not underestimate the words of a friend in a court briefing in support of the law in the Mississippi case.

“The members of this court are bound by an oath to uphold and defend the Constitution of the United States,” he said.

“We have been taken to a land where Supreme Court judges have the opportunity to recognize and enforce these rights, which they believe should be protected by the constitution,” he said.

Mitchell allowed the court to overturn Long, v. Virginia, without “cutting off the legs from below,” which he said was defensible under the Civil Rights Act of 1866.

But he added: “This news is not good for those who hope to preserve the rights invented by the homosexuality and gay marriage courts.”

He said the court did not need to overturn the rulings if it decided to reverse the decision. “But the court should not hesitate to write an opinion that would leave these decisions hanging in the balance,” he concluded, calling them “illegal as a cry.”

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