Roe was egregiously decided from the start…
Justice Alito, in Purported Draft Opinion of the Court
“Egregiously”? Why would Justice Alito feel so self-important as mere Justice Alito, to take it upon himself as one member, in a one-vote decision, to decide which groundbreaking and fundamental decisions were and were not decided egregiously? His statement is breathlessly arrogant, effectively writing that the many justices in the past that voted on Roe and similarly decided cases didn’t know the law. Alito and his five must believe they do?
Yes. And it has to be that way, as Jeffrey Toobin explains, and I fill in even greater gaps.
Alito’s statement and the ruling itself are rooted in the fact that conservative justices like Alito have never believed that the Constitution contained a right to privacy, period. The idea that the Constitution might contain an inherent right to privacy terrifies conservative justices because progressives have used such reasoning on which to hang many newfound freedoms that are now guaranteed to be constitutionally guaranteed.
Jeffrey Toobin has long been CNN’s legal analyst, and though he is not always right, he’s right enough in his description of the impact of the Court’s new draft opinion. (It is not yet a ruling, and thus there is no reason to give it that weight) This morning, Toobin took on the task of explaining why such a decision is so important, even beyond the bounds of abortion rights, and he did well enough to get the discussion started:
“The right that is described in Roe v. Wade, the basis is the right to privacy which is implicit, according to Roe v. Wade in several different constitutional provisions. It’s the same right, the right to privacy, that the court recognized in saying states can’t ban married couples from buying birth control. It’s the same provision that they said states can’t ban consensual sodomy between people of the same sex, or different sexes there are certain regions of people’s lives that they may not legislate in.”
The right to privacy has always been grounded in a “penumbra” of other constitutional guarantees and what’s come to be called the 14th Amendment’s “Substantive Due Process Clause.” The 14th Amendment states, “The federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Court has used that clause in certain critical cases for the legal basis to say that there are aspects of a person’s being that are so private, so fundamentally touching upon one’s life, that the state couldn’t give the subject “due process” if it tried. As Toobin says, it’s come up in birth control cases (where it all started), all the way to gay marriage. Again, it applies to topics that go to one’s fundamental being, the type of privacy that practically defines oneself as an individual.
Conservatives have always hated the idea of substantive due process and thus always denied its existence no matter how many centrist and liberal justices ruled in precedent-setting cases that it did. Toobin goes on:
“This is a constitutional right. What Justice Alito’s draft opinion says there’s no such thing as a right to privacy. So, abortion is not protected. private sexual matters are not protected. Purchase of birth control is not protected by the Constitution. So that opinion is an invitation, not just for states to ban abortion, but for states to regulate an entirely new area that previously had been off-limits.”
No, Alito’s opinion does not say that. Indeed, Alito goes out of his way to say abortion is different from the other cases in that – in Alito’s mind – abortion involves the right of another, a fetus. So Toobin is wrong in saying Alito “says.” What Toobin surely meant to say is that Alito’s opinion will now be the rock from which the conservatives can chip away at other fundamental rights they don’t like, and the perfect example is gay marriage. They have done away with precedent, so it’s all out in the open now. Oh, and damn sure, forget bringing any new freedoms to the Court based on a right to privacy.
Toobin goes on:
There’s another point to make about this opinion/ The theme of the opinion is we’ll let the states decide. The other part that is implicit in that opinion is Congress. If Congress wanted to ban abortion tomorrow and the president wanted to sign it, I don’t see anything in that opinion draft opinion that would stop Congress from doing this.”
True. But if we’re doing things today (or tomorrow) with a Democratic Congress and president, shouldn’t they try to pass the other law? The one that says it’s legal throughout the country first? And then dare the Republicans to run on making it illegal throughout the country themselves? Is this not the perfect situation for Democrats to stand firm and collectively say, “This is why you cannot trust Republicans, and we’ve been saying this for 30 years. It is just that too many buried their heads in the sand, thinking this day would never come.” Well, here it is. The Democrats need to reverse Toobin’s 2025 Republican proposal and make a 2022 Democratic proposal.
“So, the idea that, oh, well, this only affects the red states, that’s not true. This is an invitation, in 2025, if there’s a Republican House and Republican Senate and Republican President which is certainly more than possible, that Congress could ban abortion in the entire country. That’s invited in the opinion as well.”
Correct. And so why Toobin doesn’t do what all good lawyers do and turn it around to say, “How can we somehow use this to our advantage”? Dunno, that’s his problem. For our purposes, he is right, both ways. Perhaps Toobin references the fallout as he does because, knowing the Republicans, they’re the only ones militant enough to presume to actually do it, going right by any filibuster.
What Toobin doesn’t say is that now Democrats have a job to do. It is the Democrats’ job to explain just how quickly their lives can change when you put Republicans in charge and that they’re more than willing to yank freedoms you got to taste as a society. You can bury your head in the sand again, but trust us, abortion is just the start. LGBTQ family? You’re up next. Oh, and forget expanding any progressive rights from here on out. That’s now settled law. There is no right to privacy.
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.