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The late Justice Antonin Scalia, for instance, wrote that he would sooner “hide head in a bag” than join the Obergefell majority in supporting marriage equality. There are many who would argue that queer rights pose an equally freighted moral debate as abortion. Indeed, he writes that abortion is “fundamentally different” from other cases rooted in the right to privacy because it involves a “critical moral question.” But what counts as a “critical moral question”? Different people will have different answers. If we take Alito’s words at face value, we might believe that this decision is confined to the abortion context. Furthermore, we would return to many other conditions that we would abhor today, including coverture, or the rule that the legal rights of a married woman were subsumed to those of her husband.” Texas (2003) as well as same-sex marriage. Meyler continues: “To put the logic of Alito’s opinion in perspective, if we were to go back to the common law generally as determining the scope of liberty interests around personal autonomy, we would probably roll back the constitutional protections announced for consensual sodomy in Lawrence v. Put simply, he is cherry-picking “ the most restrictive history as the main backdrop for his opinion” to further particular ideological goals. Instead, he selectively turns to common-law tradition from the mid-nineteenth century, when the Fourteenth Amendment was ratified. These include rights that are enumerated or explicitly protected in the Bill of Rights, like the right to religious freedom as well as some rights that are not enumerated, but are still so “ fundamental” that “ neither liberty nor justice would exist if they were sacrificed.”Īlito goes on to say that the right to an abortion is not “fundamental” because it is not protected in the Constitution or “rooted in history.” Alito’s claim about history is strange because the Roe Court found that abortion rights actually did exist at the time of the nation’s founding and that abortion “was never established as a common-law crime.” Basically, as legal scholar Bernadette Meyler writes, Alito is ignoring the earlier history from the eighteenth century that the Roe Court weighed. Abortion rights are rooted in the Fourteenth Amendment, which protects a wide swath of civil rights and liberties. This ruling was later upheld in the 1991 case Planned Parenthood v. Wade established a constitutional right to abortion. What does that mean? Where do we go from here? Here’s what you need to know. The opinion suggests that the conservatives who currently control the Supreme Court may be open to a larger-scale rollback of civil liberties anchored in the right to privacy. Jackson Women’s Health Organization opinion signaling that the Supreme Court will likely soon overrule Roe v. īy now, you’ve probably heard about the leaked Dobbs v. This story was supported by the journalism nonprofit the Economic Hardship Reporting Project.