The biggest concern for many regarding Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is, unsurprisingly, what it means for abortion rights in the United States.
Chief Justice John Roberts said that the draft, while authentic, is not the final decision of the high court. However, should the court rule as such, federal protections regarding a person’s right to an abortion — once guaranteed by 1973’s Roe v. Wade and expanded by 1992’s Planned Parenthood v. Casey — would essentially disappear.
What’s less clear is how that opinion might impact a host of other decisions that use arguments similar to Roe, should it be overturned.
"Roe is the decison that the federal constitution protects the right to abortion, and the constitution doesn’t use the word ‘abortion’ — it doesn’t list most kinds of rights, it’s pretty skeletal,” Cary Franklin, a professor at UCLA Law School and Faculty Director of the Center on Reproductive Health, Law, and Policy, told Spectrum News. “But it uses words like ‘liberty’ and ‘equal protections’ and over time the court has interpreted the liberty cause of the Constitution to protect certain fundamental rights.”
Many unlisted — or unenumerated — rights benefit by a clause within the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” (The Ninth Amendment also protects against federal infringement of unenumerated rights.)
Many of those, including rights cited by Alito in the draft opinion, have become central to American life: the right to marry outside your race (Loving v. Virginia, 1967); the right to contraception (Griswold v. Connecticut, 1965); the right to not be forcibly sterilized (Skinner v. Oklahoma, 1942).
What separates those cases from the right to abortion, Alito said, is the “critical moral question posed by abortion”: the issue of “potential life.”
“None of the other decisions cited by Roe and Casey invovled the critical moral question posed by abortion…our conclusion that the Constitution does not confer such a right does not undermine them in any way,” Alito wrote.
While Alito took care to write that the cases cited by Roe and Casey were protected, his draft was murkier about two LGBT rights decisions that cited Roe and Casey: The right to engage in private, consensual sex acts (Lawrence v. Texas, 2003) and the right to marry a person of the same sex (Obergefell v. Hodges, 2015).
Alito’s writing, Franklin said, suggests that LGBT rights in particular are more constitutionally — and politically — at risk.
“In part, those decisions rest on the same ground that Roe rests on; a lot of the analysis that the court does in this opinion would seem to undermine them as a whole,” Franklin said.
In the draft opinion, Alito writes that "attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” suggesting that — with a slippery enough slope — personal autonomy and a person’s “concept of existence” could be used to determine “fundamental rights to illicit drug use, prostitution, and the like...none of these rights has any claim to being deeply rooted in history.”
Though Franklin also noted that Roe and Casey, as decisions focused on the "special element," "give the state a stronger interest and ratchets up the stakes...there are grounds for arguing that this decision should be cabined," and not be applied other decisions that do not involve the "moral question" of abortion.
“He doesn't really include Lawrence and Obergerfel in that category...that those are differentiable from [his] decision because they don't invovle those 'unique considerations," Franklin said. "That would lead one to feel [LGBT rights] are more vulnerable — the most vulnerable — because they don’t involve those ‘unique considerations’…I have questions about how safe they really are, given the reasoning that he unveiled in his case,” Franklin said.
Erwin Chemerinsky, the dean of UC Berkeley’s School of Law, noted in an essay for TIME published Tuesday that Alito’s opinion struck at Roe for protecting a right that was not included in the original text or meaning of the Constitution — and that the court could go even further than Franklin fears.
“For example, it was not until 1965, in Griswold v. Connecticut, that the Court held that the Constitution protects a right to purchase and use contraceptives,” Chemerinsky wrote. “I expect that after Roe is overruled some states will quickly pass laws prohibiting types of contraceptives that act after conception, like the IUD and morning-after pill. Under Justice Alito’s ruling, those laws too would be constitutional.”
Regardless of the extent, Franklin thinks that the pruning of rights won’t stop with abortion, and would continue with LGBT rights. “I think you already have advocates and politicians on the right planning, pretty overtly, to come after Obergerfell, and we’ll see how far that goes,” Franklin said.
“The big question is how broadly the court will expand this reasoning and how wide a swath through all of these longstanding precedents it will cut, and how far it wants to push this agenda,” Franklin said. “I don’t think it’s going to end with abortion. I don’t think it’s going to end with Roe and Casey. I think it will keep going.”