Supreme Court Justice Alito is wrong about abortion, privacy and the Constitution

The right to privacy was born in the famous 1890 Harvard Law Review note by Samuel Warren and Louis Brandeis and since then the right to privacy has been defined as “the right to be left alone”.

Privacy breaches have been considered criminal offenses under most state laws, and even under federal statutes such as wiretapping laws. Two U.S. Supreme Court decisions regarding access to contraceptives, Griswold v. Connecticut in 1965 and Eisenstadt v. Baird in 1972, established that privacy, although not mentioned by name in the US Constitution, is a fundamental right that emanates from many of the rights in the Bill of Rights and the due process and equal protection clauses of the 14th Amendment.

Perhaps the strongest assertion of privacy as a fundamental right under the 14th Amendment’s due process guarantee was in Justice Harry Blackmun’s 7-2 majority opinion in Roe v. law 6-3 majority opinion of Judge Samuel Alito in Dobbs v. Jackson Women’s Health Organization on June 4.

Alito’s majority opinion purported to overrule Roe v. Wade using a standard of review of evidence called a rational basis of review, meaning the government simply had to have a reason, any plausible reason would do, to violate a constitutional right, in this case, the right to bodily privacy. Alito never rejected the conclusion of Roe v. Wade that bodily privacy was a fundamental right, if qualified in certain circumstances, but simply applied the standard of scrutiny he alleged was used in health and safety situations.

Alito disregarded the two standards of evidentiary scrutiny that applied more properly in the case of a woman’s bodily intimacy, intermediate scrutiny and strict scrutiny. To pass the intermediate review, the government must show a significant reason for violating the right in question, and this standard is typically applied in gender-based fact models. To pass rigorous scrutiny, the most rigid standard, the government must show a compelling reason for infringement and the restriction must be narrowly tailored so as not to restrict related rights.

Alito argued that “the Court’s precedents … establish that state regulation of abortion is not a sex-based classification and therefore not subject to the scrutiny that applies to many such classifications. … On the contrary, abortion regulations and bans are governed by the same standard of control as other health and safety measures. When men learn how to get pregnant, perhaps Alito’s singular choice of evidentiary standards would be compelling.

This use of the rational basis standard of review is the most egregious of Alito’s simply bad legal reasoning. That five other justices, all of whom, like Alito, sit on the Supreme Court for the rest of their lives, agree with this flawed legal reasoning, is disheartening. However, the rest of the majority opinion is just as juvenile as a freshman law student’s attempt to distract the professor from his lack of knowledge of the case at hand.

Criticizing Roe’s historical treatment of abortion, Alito called Roe’s historical recitation “constitutionally irrelevant”, while he, Alito, reviewed the 13th to 17th centuries of abortion history in England. Alito acknowledged that while the right to privacy is not mentioned in the Constitution, the due process provision of the 14th Amendment “has been found to secure certain rights that are not mentioned in the Constitution.” However, he continued, “[B]But such a right must be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of ordered liberty,” citing the ruling in Washington v. Glucksberg. “Abortion rights do not fall into this category,” Alito wrote.

Correct, it is not. Washington v. Glucksberg was about the right to physician-assisted suicide, not a woman’s bodily intimacy. It was just one of more than 50 court decisions that Alito chose from wildly diverse (and totally irrelevant and unnecessary) fact patterns, such as gun rights cases, a man asphyxiating by unclogging a sewer line and more, without any detail or explanation. order. None of these court decisions had anything to do with a woman’s right to privacy of her body, but were, according to Alito and his team, supposed examples of “ordered liberty”.

Writing more about “ordered freedom”, Alito asserted that abortion was not “deeply rooted in the history and tradition of this nation” and was not “implicit in the concept of ordered freedom”. But then Alito continued, “Our nation’s historic understanding of ordered freedom does not preclude elected representatives of the people from deciding how abortion should be regulated.” So the judiciary could not conclude that abortion was part of ordained freedom, but elected officials could regulate abortion so that abortion was part of ordained freedom?

Alito used poor legal reasoning to overthrow Roe. A woman’s bodily privacy is a fundamental right and the rational basis standard of proof will not settle the case. A fundamental right can only be erased by using a strict control or an intermediate control where the sex of the woman is the basis of the controversy. The Dobbs decision is bad law.

Kathleen Conn, an Allentown resident, is an attorney specializing in civil rights and education law. She teaches as an associate professor.


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