The draft challenges privacy rights that extend beyond abortion
By now, nearly everyone in America has heard the news that someone privy to the inner workings of the United States Supreme Court leaked a 98-page draft opinion by conservative Associate Justice Samuel Alito that spells almost certain doom for Roe v. Wade, the 1973 case that legalized abortion in America. Nearly 50 years ago, the Court decided that the right to an abortion is a fundamental right protected by the right to privacy, as outlined in the 14th Amendment of the U.S. Constitution.
Calling Roe “egregiously wrong from the start,” Alito’s opinion would end half a century of protections, allowing each state to decide the matter independently. The political and economic agency of women—particularly in low-income communities and communities of color—could be affected. But a reading of the full text reveals a hammer blow at the concept of privacy itself, something that has been at the heart of American jurisprudence for decades.
And while Alito writes in his opinion that the conclusions drawn in the text are only to be applied to the question of abortion, and that no inference can be drawn as to future rulings on other rights, many fear the conservative agenda has set its sights on far more than just abortion. LGBTQ+ rights, voting rights and even married couples’ ability to use contraception may now face a full-frontal assault.
“There are other fundamental constitutional rights, protected currently by the right of privacy, that are being tangled with by the language of this decision,” says Noreen Farrell, civil rights attorney and executive director of Equal Rights Advocates in San Francisco.
That’s because the right to privacy is not spelled out in the Constitution. Alito’s draft well understands this fragile state of affairs: He wrote that Roe was remarkably loose in its treatment of the constitutional text.
“It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not in the Constitution,” he wrote disparagingly of Roe.
But this right to privacy is at the center of many other rights. The courts recognized this right to personal autonomy, “including parental control, child-rearing and reproductive autonomy with regard to the use of contraception,” Lisa Matsubara, vice president of policy and general counsel at Planned Parenthood Affiliates of California, said at an Ethnic Media Services briefing.
Alito’s draft explicitly criticizes privacy right based cases in a way that is very concerning, said Farrell. She points to the fact that Alito referenced landmark cases like Lawrence v. Texas (2003), which prevented the criminal prosecution of gay sexual relationships, as well as Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide on privacy grounds.
As Politico reported, Alito’s mention of Plessy v. Ferguson, which continued racial segregation under the “separate but equal” clause, in a case to overturn abortion, highlights the assumption that Roe is flawed. Farrell said that this is like pointing to a social justice case to overturn a social justice reproductive right.
Of course, in the short term, it is reproductive care that is in serious jeopardy—largely because of Alito’s reliance on misleading assertions. One of the most startling observations he made questions the motives of abortion rights supporters. Quoting arguments in amicus briefs, Justice Alito noted that “some such supporters have been motivated by a desire to suppress the size of the African American population. And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
However, in a 2014 study, Guttmacher Institute found that Black patients only accounted for 28% of abortion patients, while there were 39% white patients, 25% Hispanic patients and 9% of other races and ethnicities. Lauren Cross and Elizabeth Nash from Guttmacher summarized these findings by suggesting that “the majority of people who have abortions are also facing structural racism that is exacerbated by every logistic hurdle.”
Speaking on Democracy Now, UC Irvine law professor Michelle B. Goodwin said that we have entered the era of the New Jane Crow.
“For Black women, they are 3.5 times more likely to die due to maternal mortality in the United States than their white counterparts,” she said, layering that statistic upon the data that a woman is 14 times more likely to die from carrying a pregnancy to term than by terminating it. “If we fail to include that in our conversation then we are missing what essentially is a death sentence for many women across the United States and girls,” she said.
Calling Alito’s observation “a dog whistle to the reactionary right,” Farrell said that it is deeply concerning that Black women’s access to abortion and reproductive health are going to be deeply affected by this decision. There’s no paid family or maternity leave for many in the community, there’s no universal and subsidized childcare, and frequently inaccessible mental health care, and this is the context of harm in which this final decision will be published, she remarked.
“Our decision returns the issue of abortion to those legislative bodies,” Alito wrote, referring to state legislatures, adding that women are not without electoral or political power. However, a quick examination of women in state legislatures reveals this dismal data: 2,267 women serve in state legislatures, constituting only one-third of the nationwide state legislative cohort.
Dozens of states are getting the green light from the Supreme Court to suppress votes through gerrymandering and other tactics. Justice Alito’s argument that this can be resolved by a democratic process in the country seems disingenuous and uncompromising. But again, Monday’s stunning revelation wasn’t a judgment; it was a leak. The Supreme Court is expected to make its final decision on the future of Roe v. Wade next month.
Portions of this article were originally published in the SF Standard