OPINION: The right to privacy - not just abortion - is on the chopping block

Neal Kumar Katyal, a law professor at Georgetown University, formerly served as acting solicitor general of the United States.

The leaked draft opinion of a Supreme Court decision to overrule Roe v. Wade creates all sorts of shock waves. It announces the greatest setback for reproductive rights in more than a generation, profoundly impacting women across our land. It would bless laws like the Mississippi one at issue in the case, which restricts abortion to the first 15 weeks and includes no rape or incest exception. Perhaps the only comfort one can take in this draft opinion is that it is a draft, meaning there is a chance that things might change before the official decision. But the odds of that are probably low, and this opinion, should it become law, would profoundly alter the rights Americans hold dear, and not just on abortion. Rights to marriage equality, contraception and much more are now squarely at risk.

The draft opinion is the fruit of a decades-long campaign by conservative legal activists. In fact, it reads, word for word, as if it were written by the failed Supreme Court nominee Robert Bork. The reasoning in Roe v. Wade — decided 7-2, and written by Republican-appointee Justice Harry Blackmun, who was joined by four other Republican appointees to the Supreme Court — was grounded in the right to privacy. That right, in turn, was first articulated by the court in a 1965 Supreme Court decision, Griswold v. Connecticut, which struck down a Connecticut law that banned the sale of birth control to married couples. Bork had railed against the right to privacy, calling Griswold “unprincipled” and Roe “an unconstitutional decision, a … wholly unjustifiable judicial usurpation of state legislative authority.”

Such views led to his undoing in the United States Senate confirmation process. But Bork’s ghost lives on in this draft, showing that conservatives did not tack away from his extreme views but were simply biding their time until they had the votes to act on his vision. The draft attacks Roe as “egregiously wrong” and says, in words that Bork very well might have written, that the landmark decision lacks constitutional foundation because it is not explicitly mentioned in the text nor “deeply rooted in the Nation’s history and traditions.”

Those despairing about this opinion should remember that the courts do not monopolize abortion politics. Congress could fix the problems such a decision would cause. It can pass a statute guaranteeing the right to abortion, thereby “codifying” Roe. Such a law would be quite hard for the court to overturn. The obvious rejoinder is that such a statute, while supported by a majority in the House and Senate, could not overcome a filibuster. But there is no reason to maintain a filibuster here. Republicans already went “nuclear” and ended the filibuster for Supreme Court nominees (beginning with Justice Neil Gorsuch); if the filibuster can be ended for the enormously significant question of Supreme Court justices and their lifetime appointments, it certainly should be for the far more minor decision of creating a legislative fix to one of their decisions. The effort could even be bipartisan. Certainly senators who voted for nominees believing that they would uphold Roe v. Wade as settled precedent - Susan Collins, R-Maine, comes to mind - should be doing everything possible to make such legislation the law of the land.

But while such legislation can fix the abortion restrictions, it cannot undo the legal reasoning in the draft opinion, which will fester and reach other cases. The court’s test of “deeply rooted” traditions is the very same reasoning that will now be used to attack Griswold and much more. The draft opinion was not unaware of this concern, and indeed protested too much in response: “We emphasize that our decision concerns the constitutional right to abortion and no other right,” Justice Samuel Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” He reasons that other statutes do not involve the destruction of “fetal life” so the facts would be different. That’s true insofar as it goes. Yes, another case on, say, contraception would involve different facts, but different cases always involve different facts; the application of the same legal principles to different facts is an essential part of how law works. And here, the legal principle being adopted by the draft legal opinion - to look to whether rights are historically grounded in the traditions of the American people - are unfortunately a road map to overruling Griswold, paving the way for states to ban the use of birth control.

A high court that tosses out a “right to privacy” need not stop there. Marriage equality, as between gay couples and straight couples, guaranteed by the 2015 decision Obergefell v. Hodges (and written by Republican appointee Anthony Kennedy) is now also threatened. There is obviously no tradition of same-sex marriage per se, but Justice Kennedy’s brilliant opinion allowed the court to reach deeper into the American tradition of liberty to generalize about the rights and freedoms at stake. The same move made in the draft opinion about abortion, however, can be used to overturn Obergefell.

Of course, it is possible to think that the court won’t do any of this. But here’s a disconcerting fact: of the Supreme Court cases that conservatives have been agitating to overrule, Roe was the hardest target. And yet the court started with it. In overturning Roe, it also had to reckon with the many other abortion cases at the Court since Roe. Most notably, in 1992, in Planned Parenthood v. Casey, the Supreme Court, in an opinion written by three Republican appointees (Justices Sandra Day O’Connor, Kennedy and David Souter) said that even if Roe was problematic, it was the law of the land and the court’s credibility with the American people depended on maintaining it. The justices said social expectations had crystallized around the decision and that generations of Americans had come to rely on Roe and so it should not be overruled.

These words and principles govern us no longer. And if five justices can toss away such considerations when it comes to Roe, all of us have to ask: What’s next?

Originally published by The Washington Post.

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