On May 3, 2022, Justice Alito’s draft opinion to overturn the landmark Supreme Court case Roe v. Wade was leaked to the public. Roe v. Wade was passed nearly 50 years ago and has since been an essential case in guaranteeing the right to privacy for American women in the United States.
Alito’s draft is for the Dobbs v. Jackson Women’s Health Organization case, which is to determine the constitutionality of a current Mississippi abortion law. In his draft opinion, Alito argues that Roe v. Wade does not hold weight because abortion is never explicitly stated in the U.S. Constitution.
Alito is technically correct, however, his line of reasoning is undoubtedly cause for alarm for not only women in the U.S., but all Americans.
Roe v. Wade guarantees the right to an abortion under the right to privacy. Like abortion, the word “privacy” is never explicitly stated in the Constitution, meaning that Roe v. Wade’s overturn marks only the beginning to further privacy rights getting stripped away.
Perhaps the most closely related privacy case to the new draft opinion is the Griswold v. Connecticut decision in 1965, which guaranteed the right to contraception initially to married couples and eventually all Americans.
According to Khira M. Bridges, a law professor at the University of California, Berkeley, Alito’s originalist interpretation of the Constitution, as seen in his reasoning for overturning Roe v. Wade, will likely not protect cases involving women’s rights under the right to privacy. Bridges also noted that the Supreme Court’s willingness to overturn a long-standing precedent like Roe makes it difficult to predict which privacy rights will be brought into question next.
Roe v. Wade is an essential case that set the precedent for the right to privacy of autonomy, which guarantees the right to private and personal decision-making free from government interference.
The Supreme Court’s willingness to overturn a longstanding privacy precedent like Roe v. Wade puts more than just women’s reproductive rights at risk.
As noted earlier, the word “privacy” is never mentioned in the Constitution. Instead, the right to privacy is inferred from the First, Fourth, Ninth and Fourteenth Amendments. Overturning Roe means that a myriad of other rights that are not explicitly stated in the Constitution, but are protected by the right to privacy via these amendments, are at risk of being overturned as well.
Obergefell v. Hodges, which guarantees the right to marriage for same-sex couples, is based on the guaranteed right to autonomy—a right that was largely upheld by Roe and the Fourteenth Amendment. The case that legalized interracial marriage, Loving v. Virginia, also drew from the Fourteenth Amendment in its decision.
“It is creating the perception that longstanding doctrines, particularly ones that the right doesn’t like, are open to be overturned,” said Derek Black, an education and civil rights expert at the University of South Carolina School of Law, in reference to the opinion draft.
Texas Governor Greg Abbott explained on a conservative radio that he sees the overturn of Roe as an opportunity to overturn Plyler v. Doe next, a precedent case from 40 years ago that guaranteed undocumented children the right to an education.
Under precedent, many of the rights that aren’t explicitly outlined in the Constitution are protected. Prevalent precedent cases such as Brown v. Board, Texas v. Johnson, Gideon v. Wainwright and a plethora of others, set an expectation that certain rights will be upheld in law. Overturning such cases sends the message that laws protecting specific rights are not set in stone.
The Supreme Court’s new readiness to overturn precedent cases opens the floodgates for dozens of other precedent cases to be overturned as well. The overturn of Roe v. Wade, though at its core a clear assault on women’s rights and autonomy, is a threat to more than just women in the U.S. It is the start to the end of countless other rights that have up until now been protected by precedent.
