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“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Justice Alito in Leaked Draft Opinion on Mississippi Heartbeat law
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Obviously, there is no portion of the Constitution that states: “A woman shall have bodily autonomy, including access to safe abortion services in consultation with a physician.” Such a clause could be added, but it won’t be in the foreseeable future. There is, however, a clause in the 14th Amendment that reads;
“No state shall make or enforce any law which deprives any person of life, liberty, or property, without due process of law.”
The conservatives on the Court have always detested how progressive justices interpreted the due process clause and seem poised to overturn one of its biggest cornerstones, a woman’s right to bodily autonomy with respect to abortion.
The due process clause has a procedural aspect that requires the government to provide you “notice,” and an “meaningful opportunity to be heard.” But it has another prong, “substantive due process,” that is the center of the controversy. Connecticut originally outlawed a married couple’s right to birth control. Everyone believed it should be unconstitutional. There was just nothing in the Constitution that really addressed such an intrusive law. Progressive justices developed a “substantive” aspect of due process to stand for the proposition that there are some aspects of a person’s life that are so private, so personal, and so fundamental to one’s being that the state cannot regulate that aspect of one’s life, there is no “due process.”
Conservatives hate it, and when Alito writes that Roe was “egregiously decided from the start,” this is what he means, whether he expressly states it or not.
Now, according to the New York Times and Axios Monday A.M., legal scholars fear the loss of more women’s rights, while also fearing that many LGBTQ issues are now in limbo, especially gay marriage.
From the NY Times:
The opinion, by Justice Samuel A. Alito Jr., provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Of course, to believe Alito, one must be willing to believe that the three justices that sat in front of the Senate Judiciary Committee and promised to respect “stare decisis,” the legal doctrine, “the thing is decided,” and leave Roe in place. They all lied, there is no other word for it. Alito is not lying in saying “nothing in this decision should cast doubt on…” It is the willingness to overturn long-held SCOTUS doctrine based on the 14th Amendment’s substantive due process clause that scares women, LGBTQ family, and every liberal, at some level. Again from the Times:
Justice Alito, for his part, has made no secret of his hostility to Obergefell v. Hodges, the 2015 decision on same-sex marriage. In 2020, when the court turned down an appeal from a county clerk who had been sued for refusing to issue marriage licenses to same-sex couples, he joined a statement written by Justice Clarence Thomas that called the decision at odds with the Constitution.
“In Obergefell v. Hodges,” the statement said, “the court read a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text.”
Correct. And now the two justices are joined by three more, all appointed by Trump, who lost by 2.9 million votes (And Gorsuch’s seat had been stolen from Obama, while Coney-Barrett’s seemingly stolen from Biden).
Most chilling. Not only are these five justices hostile to the idea of substantive due process and all the freedoms that come with it, but there are also two last points to note. First, what future advances in progressive activism have now been effectively cut off? Second, given that the Court has shown a willingness to overturn two cases that affirmed a right to abortion, what rights might next be overturned?
Jason Miciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, while also studying scientific philosophy, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.
