New York: US Supreme Court Justice Samuel Alito’s draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts.
The draft ruling, disclosed in a leak that prompted Chief Justice John Roberts on Tuesday to launch an investigation, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v. Wade ruling that legalised the procedure nationwide.
The draft’s legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights that Americans take for granted in their personal lives, according to University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion.
“The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognised by the Supreme Court,” Sepper said.
The court’s 6-3 conservative majority, including Alito, has become increasingly assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary.
The Roe decision, one of the court’s most important and contentious rulings of the 20th century, recognised that the right to personal privacy under the US Constitution protects a woman’s ability to terminate her pregnancy.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only “deepened division” in society.
According to Alito, the right to abortion recognised in Roe must be overturned because it is not valid under the Constitution’s 14th Amendment right to due process.
Abortion is among a number of fundamental rights that the court over many decades recognised at least in part as what are called “substantive” due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015.
Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.
Alito reasoned in the draft that substantive due process rights must be “deeply rooted” in US history and tradition and essential to the nation’s “scheme of ordered liberty.” Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons. AFP
