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The law, as it develops over time through court decisions, is like a house that’s built on a foundation. Each precedent-setting decision is like another brick, which forms the base for the bricks laid above it and, eventually, for the entire house or legal edifice as the case may be.
Which is why Justice Samuel Alito is being disingenuous when he claims that his draft opinion overturning Roe v. Wade won’t impact rights well beyond the right to abortion, assuming it reflects the final version expected to be released by the high court next month.
Among Alito’s arguments for overturning Roe is that abortion is an “unenumerated right,” which means it is a right that’s not specifically spelled out in the U.S. Constitution. These are rights that previous courts have determined are found essentially by reading between the lines of the constitution or its various amendments.
A good example is the right of the public to access government records. Courts, for decades, have found that right to be implied through the First Amendment, which among other things, empowers a free press and provides the public the right to interact with its government. Without access to government records, courts have reasoned, neither the media nor the public can effectively exercise those clearly-expressed constitutional rights.
This is a longstanding view, and in similar manner, courts in this country have slowly but steadily built a legal basis for expanding other rights of Americans, whether it’s the right to protest their elected leaders, or simply the right to be left alone.
The U.S. Supreme Court, now emboldened by its three Trump appointees, appears poised to take the U.S. in the opposite direction, by dismantling rights that Americans have come to take for granted. That includes, notably, our long-recognized right to government records. In a 2013 case, McBurney v. Young, written not surprisingly by Justice Alito, the Supreme Court determined that Americans have no constitutional right to access public records. One effect of that ruling is that hundreds of thousands of township residents in Minnesota no longer have a legal basis for requesting township records.
And there are many other rights that Americans are poised to lose if Alito and his followers on the court continue down this path. The 1973 Roe decision didn’t come out of nowhere after all. It was built on a brick-by-brick foundation stemming from previous court rulings that had found a right to privacy within the due process clause of the 14th Amendment. That right effectively gave Americans the ability to make their own decisions about who they love, who they marry, and when to reproduce.
In writing his money quote, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito could have been referring to any of dozens of rights that Americans have achieved in recent decades. That includes the right to use contraception, the right to interracial marriage, or the right to same-sex marriage. Indeed, Alito all but acknowledges this later in his opinion, criticizing previous court precedents that established these same rights, dismissing them as “appeals to a broader right to autonomy.” To the current high court, Americans don’t have a right of autonomy or freedom of private action and Congress and the states are free, once again, to impose laws that restrict abortion, prohibit interracial or same-sex marriage, or ban the use of contraception. Many abortion opponents have long been opposed to the most common forms of birth control, such as the IUD or most pill forms of contraception under the idea that they work by preventing implantation of a fertilized egg. Many American women could soon be living in states where both birth control and abortion is outlawed. Welcome to The Handmaid’s Tale.
For most of the past century, America has made important steps forward in expanding personal liberty to all, including women and minorities, through a growing recognition that a constitution that granted Americans freedom to pursue happiness, by definition, could not give government the power to pry intrusively into our personal lives. Today’s radical Supreme Court may be willing to dismiss Americans’ right to autonomy, yet without personal autonomy, there is no liberty, and there will be nothing preventing Republican majorities from taking America back to the 1800s, when liberty was a privilege for white, straight males only.
Justice Alito has been leading this effort on the court for years. After four years of Trump, he now has a working majority to dismantle, brick-by-brick, the freedoms and personal liberty that Americans have come to expect in the 21st Century.
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