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Law experts warn that leaked SCOTUS draft opinion on Roe v. Wade exposes a weak spot that puts the use of contraception and other privacy rights at risk


MAY 5, 2022

Pro-choice signs hang on a police barricade at the U.S. Supreme Court Building in Washington, DC, on May 3, 2022. Anna Moneymaker/Getty Images

  • A SCOTUS draft opinion was leaked Monday on a major abortion rights case challenging Roe v. Wade.
  • Law experts say if Roe were overturned because a right to choose an abortion isn’t constitutional, other rulings could be next.
  • One ruling, in particular, Griswold v. Connecticut, could be at risk because a right to privacy isn’t mentioned in the Constitution.

The use of contraception and other privacy rights may be at risk if the Supreme Court overturns Roe v. Wade, the landmark 1973 ruling that granted women the constitutional right to an abortion, law experts warn.

Earlier this week, Politico published a bombshell leaked draft opinion authored by Supreme Court Justice Samuel Alito on Dobbs v. Jackson’s Women Health Organization, the major abortion case challenging Roe centering on a 2018 Mississippi law that bans abortion after 15 weeks of pregnancy.

In the leaked initial opinion, Alito maintained that the right to an abortion was a part of the right to privacy — neither of which are included in the Constitution.

Law experts cautioned that singling out the right to privacy this way exposes a weak spot that could jeopardize more than just abortion rights, including access to birth control pills and emergency contraception as well as marriage equality and gay rights.

Amid the outcry over gutting abortion rights, legal experts warned that other private rights could be threatened by Alito’s current drafted opinion

Alito, who authored the 98-page draft opinion, slammed Roe, saying the ruling was “egregiously wrong from the start.” He specifically singled out the abortion right being a part of a right to privacy — which is foundational to Roe — as not mentioned in the Constitution.

“Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote of Roe, per Politico. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

The draft opinion is not the final language of the ruling, and the Supreme Court is expected to officially release its decision by the end of June.

The landmark 1965 decision of Griswold v. Connecticut, which protects the right to marital privacy as well as the use of contraceptives, is among the decisions that supports Roe and created the “inferred right to privacy,” according to Brian Marks, a professor of economics at the University of New Haven.

By questioning the constitutionality of a right to privacy, Marks told Insider that it posits the question: “What is the definition of liberty?”

“If I ask you to find the right to privacy in the US constitution, you will not find it — there is no explicit right to privacy in the US constitution,” Marks said. “So if that draft of opinion becomes the majority opinion and at least five justices sign onto it, even to the extent they may narrow the scope, it doesn’t mean there won’t be incremental changes in other decisions along the way.”

“What we wind up seeing is to what extent is Griswold v. Connecticut the next one to fall,” he continued. “Roe v. Wade is problematic. I’ll call Roe versus Wade a punch to the gut. Griswold v. Connecticut, if it were to go next, that right to privacy as inferred would be a blow to the head.”

Geoffrey Stone, a professor of constitutional law at the University of Chicago, echoed the sentiment, saying “it’s perfectly plausible that [the Supreme Court] will say, ‘We already decided it. There’s no right of privacy in the Constitution.'”

“A key part of the rationale of Alito’s opinion is that there is no such thing as a right of privacy in the Constitution. That’s what the court relied upon in all of these cases,” Stone told Insider. “If that’s true in Dobbs, then why isn’t true in others?”

The inferred right to privacy has served as the foundation to other landmark Supreme Court decisions — including Obergefell v. Hodges in 2015, which legalized gay marriage; Loving v. Virginia in 1967, which legalized interracial marriage; and Lawrence v. Texas in 2003, which legalized same-sex sexual activity.

While Alito narrows in on abortion in his draft opinion, there’s still concern that mentioning the right to privacy as not being mentioned in the Constitution could make the aforementioned rulings at risk of being overturned.

Maxwell Mak, a political science professor at John Jay College of Criminal Justice, said if Alito’s position on Roe were to become the law of the land, it could weaken “all rights associated with the right to privacy,” including Griswold, which legalized access to birth control.

“I would think that certain contraceptive choices would be clearly on the table that you would see now with the striking down of Roe,” Mak told Insider. “They could easily isolate the take-home abortion pill and the next kind of tangential things next to that would be Plan B and emergency contraception.”

Courtesy/Source: Business Insider