May 4 (Reuters) – US Supreme Court Justice Samuel Alito’s draft opinion, which will end recognition of the constitutional right to abortion, could jeopardize other freedoms related to marriage, sexuality and family life, including birth control and weddings of the same sex, according to legal experts.
The leaked draft decision, which prompted Chief Justice John Roberts to launch an investigation, will uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn Rowe v. Wade’s 1973 law, which legalized the nationwide procedure. .
The project’s legal motivation, if accepted by the court when it issues a possible decision by the end of June, could jeopardize other rights Americans take for granted, according to University of Texas law professor Elizabeth Seper, an expert on health law and religion.
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“The low-hanging fetus is contraception, probably starting with emergency contraception, and same-sex marriages are also low-hanging fetuses, as they were recently recognized by the Supreme Court,” Seper said.
The Conservative majority of 6-3 in court, including Alito, is becoming more insistent on a number of issues. The court confirmed the authenticity of the expired project, but called it preliminary.
The Roe ruling, one of the most important and controversial court decisions of the 20th century, recognizes that the right to privacy under the US Constitution protects a woman’s ability to terminate a pregnancy.
“Rowe was extremely wrong from the start. His motives were extremely weak and the decision had detrimental consequences, “Alito wrote in the draft, adding that Rowe and a 1992 decision that confirmed it only” deepened the division “in society.
According to Alito, the right to abortion recognized in Roe should be revoked because it is not valid under the 14th Amendment to the Constitution, the right to due process.
Abortion is one of a number of fundamental rights that the court has recognized for decades, at least in part, as what are called “substantive” rights to a fair trial, including contraception in 1965, interracial marriage in 1967, and same-sex marriage. marriages in 2015
Although these rights are not explicitly mentioned in the Constitution, they are related to personal integrity, autonomy, dignity and equality. Conservative critics of the due process principle essentially say it wrongly allows unelected judges to make political choices better left to lawmakers.
Alito argued in the draft that due process rights should be “deeply rooted” in US history and tradition and essential to the nation’s “order of freedom”. Abortion, he said, was not, and he rejected arguments that it was essential to privacy and bodily autonomy.
A flag is flown before the US Supreme Court following a draft majority opinion written by Judge Samuel Alito, preparing the majority to overturn Rowe’s remarkable decision against Wade for abortion rights later this year in Washington, DC, May 3. 2022. REUTERS / Evelyn Hockstein
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Like abortion, other personal rights, including contraception and same-sex marriage, can be established by conservative judges as outside this framework, which includes rights “deeply rooted” in American history, scientists say.
“It was considered social progress – we changed as a society and different things became important and became part of what is valued,” said Carol Sanger, a reproductive rights expert at Colombia’s law school.
In the project, Alito tried to distinguish abortion from other rights because, unlike others, it destroys what Roe’s decision calls “potential life.”
“Nothing in this view should be understood to call into question precedents that do not affect abortion,” Alito wrote.
Seper said Alito “is not very convincing because he is not doing his job to differentiate these cases in a meaningful way.” She added: “This is a really broad opinion. It does not pull any blows when it comes to proper abortion.”
Alito’s view is similar to his disagreement with the court’s ruling on same-sex marriage, in which he said the promise of a proper 14th Amendment process only protects rights deeply rooted in American history and tradition.
“And it is indisputable that the right to same-sex marriage is not among these rights,” Alito wrote in his 2015 disagreement.
Some conservative commentators have suggested that Alito provided a roadmap for future attempts to abolish other guaranteed freedoms. Other legal scholars doubt that there is either a desire in court or in the legislature to abolish other rights.
“With regard to interracial marriage, contraception and same-sex marriage, for one reason or another, the court is unlikely to reconsider these decisions,” said John McGinnis, a law professor at Northwestern University.
The fact that Americans relied on the same-sex marriage decision to plan and invest in their lives and relationships makes judges unlikely to overturn it, McGinnis said.
McGinnis added: “No state legislature will get rid of contraception. That’s fantastic. And no state legislature will get rid of interracial marriage.”
George Mason University law professor Ilya Somin said Alito’s decision could make it unlikely the court would recognize proper procedural protection in new areas such as transgender rights.
“But overall, its effect on due process rights is likely to be negligible,” Somin said.
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Report by Andrew Chung in New York; Edited by Will Dunham and Scott Malone
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