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https://www.reuters.com/world/us/gay-marriage-other-rights-risk-after-us- supreme-court-abortion-move-2022-05-04/

May 4 (Reuters) - U.S. Supreme Court Justice Samuel Alito's draft opinion
that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life
including birth control and same-sex nuptials, according to legal experts.

The draft ruling, disclosed in a leak that prompted Chief Justice John
Roberts on Tuesday to launch an investigation, would uphold a Mississippi
law banning abortions after 15 weeks of pregnancy and overturn the 1973
Roe v. Wade ruling that legalized the procedure nationwide.

The draft's legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights that
Americans take for granted in their personal lives, according to
University of Texas law professor Elizabeth Sepper, an expert in
healthcare law and religion.

"The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it
was very recently recognized by the Supreme Court," Sepper said.

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The court's 6-3 conservative majority, including Alito, has become
increasingly assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary.

The Roe decision, one of the court's most important and contentious
rulings of the 20th century, recognized that the right to personal privacy under the U.S. Constitution protects a woman's ability to terminate her pregnancy.

"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences," Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only "deepened division" in society.

According to Alito, the right to abortion recognized in Roe must be
overturned because it is not valid under the Constitution's 14th Amendment right to due process.

Abortion is among a number of fundamental rights that the court over many decades recognized at least in part as what are called "substantive" due process liberties, including contraception in 1965, interracial marriage
in 1967 and same-sex marriage in 2015.

Though these rights are not explicitly mentioned in the Constitution, they
are linked to personal privacy, autonomy, dignity and equality.
Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.

Alito reasoned in the draft that substantive due process rights must be
"deeply rooted" in U.S. 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.

People protest after leak of U.S. Supreme Court draft majority opinion on
Roe v. Wade abortion rights decision, in Washington
The U.S. Supreme Court is seen after leak of U.S. Supreme Court draft
majority opinion on Roe v. Wade abortion-rights decision, in Washington
People protest after leak of U.S. Supreme Court draft majority opinion on
Roe v. Wade abortion rights decision, in Washington


1/2
A flag waves outside the U.S. Supreme Court after the leak of a draft
majority opinion written by Justice Samuel Alito preparing for a majority
of the court to overturn the landmark Roe v. Wade abortion-rights decision later this year, in Washington, U.S., May 3, 2022. REUTERS/Evelyn
Hockstein



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.

"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.

In the draft, Alito sought to distinguish abortion from other rights
because it, unlike the others, destroys what the Roe ruling called
"potential life."

"Nothing in this opinion should be understood to cast doubt on precedents
that do not concern abortion," Alito wrote.

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. It doesn't pull any punches when it comes
to the abortion right."

Alito'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.

"And it is beyond dispute that the right to same-sex marriage is not among those rights," Alito wrote in his 2015 dissent.

Some conservative commentators have suggested that Alito has provided a
road map for future attempts to eliminate other guaranteed liberties.
Other legal scholars doubt that there is either a willingness on the court
or in legislatures to eliminate other rights.

"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.

The fact that Americans have relied on the same-sex marriage decision to
plan and invest in their lives and relationships makes it unlikely that
the justices will overturn it, McGinnis said.

McGinnis added, "No state legislature is going to get rid of
contraception. That's fanciful. And no state legislature is going to get
rid of interracial marriage."

George Mason University constitutional law professor Ilya Somin said
Alito's ruling could make it unlikely the court would recognize due
process protections in new areas such as transgender rights.

"But on the whole its effect on due process rights is likely to be minor," Somin said.



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