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After Roe v. Wade, is this Clarence Thomas courthouse now?

When the United States Supreme Court backed down in 2003 to strike down Texas’ gay sex ban, two justices wrote starkly different dissenting opinions.

Most of the press attention has focused on the longer of the two, by judge Antonin Scalia, who read it verbatim from the bench. He argued in some cases “discrimination is a constitutional right,” and called the court’s decision a “massive disruption of the current social order”. He predicted the collapse of laws against adultery, bigamy, same-sex marriage, adult fornication and incest – as well as bestiality and obscenity.

“It effectively decrees the end of all moral legislation,” he wrote in his dissent in Lawrence v. Texas, the case stemming from the arrest of John Geddes Lawrence and Tyron Garner by police who broke into their east Harris County apartment after a jealous ex. -boyfriend had falsely reported a disturbance.

Nineteen years later, as the court appears poised to overturn Roe v. Wade, Scalia’s thunderous dissent no longer seems as significant as a second dissent delivered that day, that of Justice Clarence Thomas in much calmer language and spanning only two paragraphs. Right now, it may signal what lies ahead now that Judge Samuel Alito’s draft opinion in a landmark Mississippi abortion case has been leaked.

In Lawrence, Thomas joined Scalia’s dissent, but wrote separately that although he found the Texas law criminalizing sodomy by adults “dumb” and a waste of law enforcement resources, he believed that nothing in the Constitution gave him the power to cancel it.

“I find neither in the Bill of Rights nor in any other part of the Constitution a general right to privacy,” he wrote, borrowing the language of Justice Potter Stewart’s 1965 dissent in Griswold v. Connecticutwhich granted adults the right to marital privacy and laid the foundation for Roe v. Wade.

For all of Scalia’s overheated rhetoric, the legendary conservative justice was right that Lawrence would help usher in a wave of rulings overturning so-called moral legislation and lead to same-sex marriage, among other outcomes. Yet it was this single sentence from Thomas that most accurately foreshadowed Roe’s vulnerability and perhaps other landmark decisions that relied on prior courts’ presumption of a constitutional right to privacy.

Alito does not specifically say in his recently leaked draft, as Thomas did 19 years ago, that the right to privacy does not exist because the word cannot be found in the text of the Constitution.

Instead, he concludes that any right to privacy does not extend to abortion. His reading – critics say a misreading – of Supreme Court precedents convinces him that two things are necessary before a court can establish a right that is not mentioned in the Constitution. This is exactly what the majority did when it first recognized the right to abortion. “The court has long asked whether the law is ‘deeply rooted in our history and tradition’ and whether it is essential to our nation’s ‘ordered liberty scheme’,” he wrote.

That little “and” word is what many scholars fear will pave the way for sustained attacks on previously established rights, despite Alito’s explicit assurance that this will not happen. He says abortion is unique, as it takes a life, and rejects comparisons with other implied constitutional rights.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University Pritzker School of Law in Chicago, said in an interview that by pointing out that unlisted rights must meet both parts of this two-pronged test – whereas courts Precedents have far more often seen it as a case of either/or – Alito has provided a clear roadmap for attacks on same-sex marriage, the right to contraception, and other fundamental rights not specified in the Constitution.

“What could satisfy both conditions?” Koppelman said.

He gives an example: In 1977, the Court ruled 7 to 2 in Moore v. East Cleveland, writing that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the history and tradition of the nation. ”

A housing order sought to prevent a grandmother from living with two adult grandsons who were not brothers. In ruling for the grandmother, the court relied on only one part of Alito’s two-pronged test. He made no attempt to show that denying him a place in the grandsons’ house would also upset the well-ordered liberty of the nation. “That decision could be different if suddenly both tests had to be met,” Koppelman said.

The same goes for a whole host of other decisions over the past half century or so.

A list of freedoms

So what rights are protected? The answer lies in the 14th Amendment itself, which states in part: “No state shall deprive any person of life, liberty, or property, except due process.”

What does freedom entail? In Washington v. Glucksbergthe 1997 unanimous decision upholding the state’s criminal penalties for assisted suicide, Chief Justice William Rehnquist offered a partial list.

“In a long line of cases, we have argued that in addition to the specific freedoms protected by the Bill of Rights, the ‘freedom’ specially protected by the Due Process Clause includes the rights to marry, have children , to direct the upbringing and upbringing of his children, to marital intimacy, to the use of contraception, bodily integrity and abortion,” Rehnquist wrote.

Alito’s project could undermine all of those decisions.

“If you follow the reasoning of Alito’s opinion, then all the rights listed are in danger”, Erwin Chemerinskydean of the University of California at Berkeley Law School and a prominent Supreme Court scholar, said in an interview.

But he issued an important caveat: ‘The threat is as great as the court is going to make it,’ he said, adding that ‘we just can’t yet know’ how far judges will rein in the 14th Amendment’s conception of freedom, or what unlisted rights they might target next.

It is also unclear whether the court’s more restrictive reading of the right to privacy will lead to a slow but steady curtailment of other freedoms.

Penumbra and emanations

We will all have to wait for the Court to render the decision in Dobbs v. Jackson, the Mississippi case, and until lower courts begin to decide new cases.

But both Chemerinsky and Koppelman argue that the right to contraception is among those most at risk — whether that means an outright ban on contraception or, perhaps more likely, a winnowing of permitted methods. A strong right to contraception is unlikely to pass the test if the court insists on showing that legal contraception is deeply rooted in the nation’s history. When the court made Griswold against Connecticut in 1965, he did not argue that laws such as Connecticut’s making the use of contraception a crime were uncommon. He just said they violated the privacy a married couple should expect.

“We are dealing with a right to privacy that is older than the Bill of Rights – older than our political parties, older than our school system,” Justice William Douglas wrote for the majority. “Marriage is a coming together for better or for worse, hopefully lasting, and intimate to the point of being sacred.”

He traced a long line of cases that had concluded that certain rights, although not mentioned, were nevertheless protected by the Constitution. Douglas used famous abstract language in Griswold, giving decades of heartburn to those who want to read the Constitution literally. “The specific guarantees of the Bill of Rights have penumbra, formed by emanations from those guarantees which help to give them life and substance,” Douglas wrote. He cited the First Amendment’s protection of the right of adults to read what they enjoy, even though reading is not mentioned anywhere in the Constitution.

Many see this reasoning, and Douglas’ emphasis on the right to privacy, as laying the groundwork for the court’s decision in Roe eight years later. Justice Potter Stewart’s dissent in Griswold tried to sound that warning. He called the Contraception Act “stupid”, but said the Constitution did not support the general right to privacy – and therefore laws criminalizing the use of contraception should stand.

Sound familiar?

In Thomas’ 2003 dissent in the sodomy case, when he drew so heavily on Stewart’s dissent, he was widely seen as an outlier on the pitch, rarely at the center of his strongest opinions. important or even of its most important dissents. He was perhaps best known at this time for his refusal to ask even a single question during most oral arguments.

Now that the court’s conservative transformation is complete, Thomas finds himself squarely in the middle of his new supermajority. It’s a much more conservative tribunal than any Scalia envisioned. If given the chance, will enough of Thomas’s colleagues join him in a drastic curtailment of Americans’ right to privacy? Will future courts be forced to strike down any right that is not spellcheckable in the US Constitution? And if so, what will we be left with?

Michael Lindenberger is associate editor of the Houston Chronicle and Pulitzer Prize winner.

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