"On interracial marriage, contraception and same-sex marriage, for one reason or another there is no likelihood the court is going to revisit those decisions," Northwestern University law professor John McGinnis said. Other legal scholars doubt that there is either a willingness on the court or in legislatures to eliminate other rights. Some conservative commentators have suggested that Alito has provided a road map for future attempts to eliminate other guaranteed liberties. "And it is beyond dispute that the right to same-sex marriage is not among those rights," Alito wrote in his 2015 dissent. It doesn't pull any punches when it comes to the abortion right."Īlito's opinion resembles his dissent in the court's same-sex marriage ruling in which he said the 14th Amendment's due process promise protects only rights deeply rooted in America's history and tradition. Sepper said that Alito is "not particularly convincing because he doesn't do the work to distinguish those cases in a meaningful way." She added: "It's a really sweeping opinion.
"Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," Alito wrote. In the draft, Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called "potential life." "This was considered social progress - we were changing as a society and different things became important and became part of what one cherished," said Carol Sanger, an expert in reproductive rights at Columbia Law School. Like abortion, other personal rights including contraception and same-sex marriage may be found by conservative justices to fall outside this framework involving rights "deeply rooted" in American history, scholars noted. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.Īlito reasoned in the draft that substantive due process rights must be "deeply rooted" in US history and tradition and essential to the nation's "scheme of ordered liberty." Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons.
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