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“There’s no national movement to overturn Obergefell,” said South Texas College of Law Professor Josh Blackman. However, some legal experts don’t think the slippery slope is all that slippery in practice because many of the rights Alito cites are no longer terribly controversial. Hodges, the same-sex marriage ruling delivered just seven years ago. That would seem to put relatively recent decisions in the crosshairs, particularly Obergefell v. “Even as the draft claims it’s limited to abortion, it’s focused on the pedigree of the right,” Vladeck said, adding that the same rationale “would apply in other contexts where the court has recognized other rights not sufficiently rooted in in American contemporary tradition to mollify the court.” Vladeck also noted the recurring theme in Alito’s opinion that purported rights that aren’t firmly established in American traditions are inherently more suspect than those with a longer history. “It’s both the reasoning and the very existence of this opinion that leave me completely unpersuaded that this majority would be willing to stop at Roe,” said University of Texas Law Professor Stephen Vladeck. Simply the act of overturning the 49-year-old precedent means that newer rights, like same-sex marriage, could meet the same fate. Some court observers contend that Alito’s specific reasoning for dismantling Roe isn’t the only thing in the opinion that imperils other rights. “It’s a fundamental shift in American jurisprudence.” “Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?” the president said. “If the rationale of the decision as released were to be sustained, a whole range of rights are in question,” Biden added.īiden specifically suggested that same-sex marriage could be again outlawed in some states if Alito’s view holds sway at the high court. “It would mean that every other decision relating to the notion of privacy is thrown into question,” Biden said in response to questions from reporters Tuesday, just after Chief Justice John Roberts issued a statement confirming the draft obtained by POLITICO is authentic.
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Among them is a prominent Delaware attorney: President Joe Biden. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way,” Alito writes in the draft opinion published by POLITICO on Monday.īut many on the left simply don’t buy that. The protections discussed in Alito’s opinion range from the right to same-sex marriage the high court declared in 2015 to the right to contraception established in 1965 to the right to engage in interracial marriage adopted by the court in 1967.Īfter citing 14 such cases, Alito declares them irrelevant to abortion and confidently asserts that yanking Roe from the fabric of American jurisprudence would pose no threat whatsoever to any of those rights. Bush appointee forcefully insisted that setting aside Roe wouldn’t impact any right other than abortion.
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“There are a lot of decisions that rest on this right of privacy that springs not just from the Bill of Rights, but also the 14th Amendment and the concept of liberty in this country.”Īlito actually included in his proposed opinion a helpful list of rights arguably undercut by overturning Roe, even as the conservative George W. “They kicked the ladder out from under the right of privacy in the Constitution,” McCaskill said on MSNBC. Claire McCaskill (D-Mo.) struck a similar note of alarm, warning that almost any right grounded in concerns about personal privacy was in jeopardy if an opinion like Alito’s becomes law.