Since Monday’s leak of the U.S. Supreme Court draft from Justice Samuel Alito was published, there has been much speculation about the impact of the apparent and forthcoming ruling that will upend the 1973 Roe vs. Wade decision.
Critics of the Court have stated they believe overturning this historic ruling will be the first of many potential negative consequences on the rights of many American citizens.
Rep. Alexandria Ocasio-Cortez said, “As we’ve warned, SCOTUS isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights.”
President Biden also said Tuesday that if the ruling is finalized, “every other decision relating to the notion of privacy is thrown into question.”
Those who disagree with the leaked opinion have rested their arguments on stating that the opinion of the Court violates constitutional rights. However, upon closer examination of the leaked document, Justice Alito claims that there is no direct or apparent violation of constitutional rights.
In his written opinion, Alito said that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Alito notes that the Fourteenth Amendment has been used to protect rights that are not clearly defined in the Constitution. He said that the rights referred to as part of the chosen amendment must be “deeply rooted in this Nation’s history.”
Throughout the written opinion, the case is made that what is most deeply rooted in American history is the illegal status of abortion, which was considered a criminal act for much of U.S. history. Alito said that before the 1973 ruling, there was an “unbroken tradition of prohibiting abortion,” which he said “persisted from the earliest” stage of the country’s existence.
Alito also notes that the Supreme Court “usurped” the democratic process, which allows citizens to cast a vote and empowers each state within the union to make decisions and enforce laws based upon those votes. He said that the “Court was on a collision course with the Constitution” from the very moment it issued the ruling in 1973.
As a result, he concludes that the Court must overturn the ruling and return the decision on abortion to the democratic processes held in each state.
This opinion from the Court seems to have no direct future impact on the decisions made regarding same-sex marriage, civil rights, or any other.
Upon examination of Obergefell vs. Hodges, which legalized same-sex marriage, the Court’s decision follows the rationale of Monday’s leaked opinion. In that case, the primary question being posed was, does the definition of the “fundamental right” of marriage include same-sex couples?
The Court held that the Fourteenth Amendment requires a state to license same-sex marriages because marriage is already a well-established fundamental right in American history. This portion of the Obergefell ruling falls in line directly with Alito’s draft, in which he says that the rights protected by the Fourteenth Amendment must be “deeply rooted in this Nation’s history.”
The concern that Alito’s opinion violates due process protections in the Constitution holds little weight in the argument. The Due Process Clause guarantees freedom from arbitrary punishment. As Alexander Hamilton established in 1787, punishment is “arbitrary” if it does not occur via a fundamentally fair judicial adjudication.
A fair and reasoned decision by the Supreme Court falls within the parameters set by Hamilton and carries forward in our Nation’s governmental parameters.
If the opinion from Alito becomes final, it is not an ultimate end to the right or access to abortion. The decision will merely return the decision to the democratic process in each of the fifty states.