Are All Court-Created Rights Now in Peril?
In the storm that erupted over the leaked draft opinion of Justice Samuel Alito, which would overturn Roe v. Wade, a secondary alarm has arisen among our elites.
If Roe is overturned, it is said, a whole raft of Supreme Court rulings rooted in the same principles and legal reasoning could be overturned as well.
Pillars of our progressive society could come crashing down.
In an op-ed in The Washington Post, legal scholars Melissa Murray and Leah Litman wrote that Alito's draft opinion "declares that the Constitution 'makes no reference to abortion' and argues that abortion rights were 'entirely unknown in American law,' throughout most of the nation's history."
Yet, the scholars argue, the same "is true of contraception, which the court held states could not restrict in Griswold v. Connecticut. It's true of ... interracial marriage and same-sex marriage, which the court has held could not be prohibited in Loving v. Virginia and Obergefell v. Hodges. It's true of sexual intimacy between consenting adults, which the court held states could not prohibit in Lawrence v. Texas."
If a woman's right to an abortion no longer exists, we are being forewarned, the right to birth control, gay rights, interracial marriage and same-sex marriage could be the next to fall to the Alito ax.
Yet, the idea that a state legislature, in this decade, would enact a new statute that outlaws sexual relations between gays and lesbians or rejects any constitutional right to same-sex marriage -- and the Supreme Court would uphold that statute -- seems an absurdity.
Still, the raising of such fears tells us something about those advancing this line of argument. They are worried about the fate of cherished reforms that they have managed to impose upon the nation and its people through autocratic decisions of the Supreme Court.
What the pro-abortionists are saying is that many court decisions declaring new rights are not at all deeply rooted in the Constitution or in the hearts and minds of the population.
They are saying that there are more Americans than you might imagine who would like to see the work of the Supreme Court, of which progressives are most proud, undone.