How Samuel Alito laid out a 'sweeping and radical' argument for rolling back a variety of civil liberties

In a leaked initial majority draft opinion reported by Politico on Monday night, May 2, U.S. Supreme Court Justice Samuel Alito not only makes an argument for overturning Roe v. Wade — he also rails against right-to-privacy decisions in general. The George W. Bush appointee writes, “Roe was egregiously wrong from the start…. We hold that Roe and (Planned Parenthood v.) Casey must be overruled.” And Alito, journalist Adam Serwer warns in an article published by The Atlantic on May 4, emphasizes that Alito has also laid out a case for overturning many other High Court rulings of the 20^th Century that have protected civil liberties.

“The draft, written by Justice Samuel Alito, is sweeping and radical,” Serwer warns. “There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification.”

Serwer goes on to stress that the “implications” of Alito’s draft are “tremendous” for “more than just abortion.”

“In the U.S., the rights of many marginalized groups are tied to the legal precedents established in the fight for abortion rights,” Serwer explains. “This opinion, if adopted, provides a path to nullifying those rights one by one…. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful.”

Serwer continues, “The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets. But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.”

Right-to-privacy decisions that Alito specifically attacks in his draft opinion include 2015’s Obergefell v. Hodges (which legalized same-sex marriage nationwide) and 2003’s Lawrence v. Texas, which struck down a Texas sodomy law and similar laws in other states. As Alito sees it, those rulings were wrongly decided just as Roe was wrongly decided.

Alito, however, wrote, “We emphasize that our decision concerns the constitutional right to abortion and no other right…. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Serwer argues that Alito’s “word means absolutely nothing” — a view that New York University law professor Melissa Murray shares.

Murray told Serwer, “This is total gaslighting; he knows as well as anyone that these other rights are like Roe, rooted in the right to privacy. If Roe is imperiled because it is unenumerated and not ‘rooted in our history and tradition,’ then these other rights are also subject to challenge. Conservative lawyers are going to eat this up like catnip, and of course, they are going to challenge these other precedents.”

Serwer also interviewed University of Texas at Austin law professor Stephen Vladeck for his article. And like Murray and Serwer, Vladeck believes that the implications of Alito’s argument for overturning Roe v. Wade go way beyond abortion.

Vladeck told Serwer, “The majority can believe that it’s only eviscerating a right to abortion in this draft, but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”