Jurisprudence

The Biggest Lie Conservative Defenders of Alito’s Leaked Opinion Are Telling

"Equal Justice Under Law" inscribed on the exterior of the Supreme Court
The Supreme Court of the United States. Matthew Rodier/Sipa USA via Reuters Connect

The leaked copy of Justice Samuel Alito’s draft majority opinion overruling Roe v. Wade has unleashed a wave of concern about what the opinion would mean, not only for people who depend on the availability of abortion care but also for people who depend on other fundamental rights related to the 1973 ruling.

As President Joe Biden and legal commentators pointed out, Alito’s stated reasons for overruling Roe could seemingly be applied to overrule other precedents ranging from Obergefell v. Hodges, which recognized a right to marriage equality, to Lawrence v. Texas, which recognized a fundamental right for intimate relationships between consenting adults including adults of the same sex, to Griswold v. Connecticut, which recognized a fundamental right to contraception.

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While conservative commentators have sought to minimize these fears, one of their main responses has exposed Alito’s draft majority opinion as nothing more than a lawless exercise of political power. They now claim that the court wouldn’t overrule those other precedents because, among other things, those other precedents are “politically popular.”

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[Read: The “Original Sin” of the Religious Right]

This, to be clear, is not a legal distinction. It’s merely a statement that public opinion and politics will dictate what the court’s conservative supermajority thinks it can get away with—respect for the law and neutral principles be damned.

The leaked draft opinion seemingly puts several other constitutional rights squarely in the court’s crosshairs. As Mark Joseph Stern argued, Alito’s broadside attack against “unenumerated rights” that aren’t “deeply rooted” in American history could be deployed against the right of same-sex couples to be intimate or to get married. Like the right to decide to have an abortion, the right of same-sex couples to be intimate or to get married isn’t explicitly mentioned in the text of the Constitution. There aren’t state constitutional provisions or state or federal court cases from the 1800s or early 1900s recognizing those rights either. And these other opinions, like Roe and Planned Parenthood v. Casey, are reasoned at a “high level of generality,” invoking concepts like dignity, destiny, and defining one’s own existence.

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Indeed, that these concepts appear in the other opinions is one of the reasons Justice Clarence Thomas dissented in Lawrence, and why Thomas and Alito dissented in Obergefell. And given the Dobbs draft opinion’s cursory treatment of the doctrine of stare decisis, which ordinarily calls for the court to respect decisions around which people have built their lives, people rightfully worry about what fundamental rights the Supreme Court would come for next.

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There’s no reason for concern, the Wall Street Journal Editorial Board and some conservative legal commentators have insisted. According to the Journal, “unlike Roe,” the decisions protecting contraception and marriage equality, “have … broad public acceptance” as evidenced by Gallup polls. And, commentators claimed, “public opinion on abortion remains deeply divided,” whereas same-sex marriage and contraception apparently now have broad public support. These claims, however, are at best factually incorrect. At worst, they amount to willful misdirection. A CNN poll from January shows that 69 percent of Americans want to keep Roe, and the Journal noted that 70 percent of Americans support marriage equality.

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According to conservatives, the reason the conservative justices won’t follow up an opinion overruling Roe with opinions overruling Obergefell, Lawrence, and Griswold is not because the law or legal reasoning distinguishes those cases from one another. It’s because public opinion does—and the court will apparently overrule prior decisions only when it thinks it can get away with overruling them. Put another way: In an attempt to quash the criticism of Alito’s radical opinion, conservatives have instead shown just how political and lawless it is.

Leaked draft aside, the concern over the fate of other rights is warranted. Several conservative justices have already laid bare their views on birth control and same-sex marriage. Thomas and Alito have already called for the court to revisit Obergefell. And in his confirmation hearings, Justice Brett Kavanaugh referred to birth control as “abortion-inducing drugs.” In a previous majority opinion, Alito concluded that the federal contraception mandate was illegal because employers could reasonably view contraception as an abortifacient.

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Republican legislatures, for their part, haven’t even waited until the ink is dry on a final opinion in Dobbs before beginning their push to overrule other rights as well. More than a dozen states are clamoring to enact anti-LGBTQ legislation like Florida’s “don’t say gay” law just as quickly as they are enacting abortion restrictions. Two days after the leak, Gov. Greg Abbott of Texas voiced support for revisiting the court’s 1982 ruling that held states may not exclude undocumented children from public education. The Texas legislature has already given notice for public hearings to review “any applicable precedents, and the legal landscape regarding the education of migrant children in Texas’s public schools.” Louisiana Republicans voted out of committee a bill making abortion a crime of homicide “from the moment of fertilization” and allowing prosecutors to charge patients with murder.

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It’s also worth remembering that Republicans insisted, against all evidence, that none of the justices they were appointing would overrule Roe even while promising to appoint justices who would. President Donald Trump famously proclaimed to then-candidate Joe Biden that Biden had no idea where Trump’s nominee to the Supreme Court, Justice Amy Coney Barrett, stood on abortion. “You don’t know her view on Roe v. Wade,” the former president said. In the confirmation hearings for Kavanaugh, Republican Sen. Ben Sasse called it “hysteria” for progressives to stage protests calling attention to the future of Roe v. Wade.

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If the Overton window on overruling Roe could move as quickly as it did, the same is surely possible for Obergefell, Lawrence, and Griswold.

It would be a relief if these (deeply contestable) assurances of the limited impact of a ruling like the draft opinion in Dobbs turn out to be true. But whether or not the potential fallout materializes, the conservative rhetoric only underscores that what’s really going on here is not the Supreme Court’s application of neutral legal principles, but rather a brazen assertion of raw political power.

Read more of Slate’s coverage on abortion rights here.

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