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Privacy Has Been Given the Pink Slip

May 10, 2022 0 comments

While Alito wrote in his draft opinion that decisions to allow same-sex and interracial marriage, the right to contraception, and the prohibition on sterilization without consent would not be affected if Roe v. Wade (1972) and Planned Parenthood v. Casey (1992) are overturned, Alito also specifically criticizes the landmark civil rights cases that legalized marriage equality, Obergefell v. Hodges, and private consensual sex, Lawrence v. Texas in the same document.

It’s also worth noting that Justice Clarence Thomas dissented in Lawrence, while both Thomas and Alito dissented in Obergefell.

The right to privacy was first recognized in the United States by the Supreme Court only 57 years ago in Griswold v. Connecticut (1965).

The majority opinion in Griswold used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find an implied right to privacy in the Constitution, though the right to privacy was narrowly defined for married couples only, and only with regard to the right to purchase contraceptives.

Contrary to Alito’s assertion that the Court draft opinion is solely concerned with the “right to abortion and no other rights,” the Court routinely uses minority opinions, concurring opinions, and even descent opinions from previous cases to justify decisions.

For example, in the four landmark cases where the Court most enlarged the right to privacy post-Griswold, the Court chose to rely on Justice Harlan’s concurrence opinion rather than Justice Douglas’ majority opinion: Eisenstadt v. Baird (1971), Roe v. Wade (1972), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). 

Contrary to the majority opinion in Griswold [privacy rights derived from the First, Third, Fourth, Fifth, and Ninth Amendments], Justice Harlan’s concurring opinion found that the Fourteenth Amendment provides a right to privacy, but not the other five Amendments.

Justice Harlan states, “I believe that a statute making it a criminal offense for married couples to use contraception is an intolerable and unjustifiable invasion of privacy in the conduct of an individual’s most intimate concerns of a personal life” and a violation of the right to privacy derived from the Fourteenth Amendment‘s Due Process Clause.

The Supreme Court determined in Eisenstadt to extend the right to buy and use contraceptives established in Griswold to unmarried couples, but the Court based their decision on Justice Harland’s concurring opinion [privacy right derived from the Fourteenth Amendment] rather than the majority opinion [privacy right derived from the First, Third, Fourth, Fifth, and Ninth Amendments].

Eisenstadt Court also established that “the constitutionally protected right to privacy inheres in the person, not the married couple.”

As a result, married couples’ right to contraception is arguably legally secure because the basis of the privacy right is [according to the Griswold majority opinion] specifically established in the First, Third, Fourth, Fifth, and Ninth Amendment Constitutional guarantees as well as the 14th Amendment [according to the Griswold concurring opinion].

To overturn Griswold, the five conservative Justices would have to conclude that privacy rights are not linked to the expressly stated rights in each of the six Amendments Griswold cites, rather than negating just the Fourteenth Amendment protections, as Alito does in his draft opinion to overturn Roe and Casey.

The same can not be said for Eisenstadt.

Because the Eisenstadt decision to extend privacy right to buy and use contraceptives to unmarried couples was based on Justice Harland’s concurring opinion [privacy right derived from the Fourteenth Amendment] rather than the majority opinion [derived from the First, Third, Fourth, Fifth, and Ninth Amendments], if Roe‘s privacy right tied to the 14th Amendment‘s Due Process Clause in previous Court [concurring] opinion is invalid, the privacy rights established in Eisenstadt have no precedent either.

Nor does Eisenstadt‘s “privacy inheres in the person” precedent.

The Court in Lawrence, like Eisenstadt, relied on the Fourteenth Amendment‘s Due Process Clause to find an individual privacy right in the bedroom using Justice Harland’s 14th Amendment concurring opinion rather than the Griswold majority judgment [privacy rights derived from the First, Third, Fourth, Fifth, and Ninth Amendments].

Again, if Roe‘s privacy right tied to the 14th Amendment’s Due Process Clause in previous Court [concurring] opinion is invalid, the privacy rights established in Lawrence are on shaky ground too.

If the right to privacy is weakened, those cases will have less weight.

Overturning Roe will be particularly dangerous because it will send a signal to lower courts to reject all prior rulings.

However, Obergefell differs from Griswold, Eisenstadt, Lawrence, and Roe in that it has been used by hundreds of thousands of same-sex couples to marry and form legal relationships such as child custody, joint property, inheritance rights, and fixed expectations about the future.

But Alito’s draft opinion finds there is no freedom from state compulsion that cannot be revoked if conservatives find it personally objectionable.

Going forward, Religious extremists could take a page from their own anti-abortion playbook to target other freedoms, which included multiple measures over the decades that tackled the issue from different angles, imposed limits rather than blanket prohibitions, and used unusual strategies like the civil-enforcement mechanism empowering total strangers to sue anyone for potential violations, as well as scraping data from social media and selling it to law enforcement.

The long-held concept that someone has the right to exploit your body against your will for their own pleasure underlies the overturning of Roe and Casey.

It also explains why Republican abortion bans have limited or no exceptions for rape, incest, or maternal health.

While Roe allowed abortion opponents to CHOOSE not to have an abortion, overturning Roe allows states to ban individuals from making any CHOICE.

When you have no options, CHOICE has been denied.

While only 22.64% of the population is losing their liberties with this one opinion, that’s just the tip of the iceberg for extremists who want to impose their will on the rest of us.

The most extremist political group in modern American history is just getting started.

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