Horrible news today. But if you want legal analysis of where this decision's logic breaks down, it's at this point right here 
Full disclosure: I happen to agree with the Court that the Roe decision was not well or correctly reasoned. If there's a Constitutional right to abortion, it's not supported by the reasoning as articulated in Roe.
Ironically, it *is* supported by what Alito puts right here.
Ironically, it *is* supported by what Alito puts right here.
Let's start with "deeply rooted" and "implicit in the concept of ordered liberty"
Alito's opinions present that as a two factor test (it must be both "deeply rooted" and "implicit in the concept of ordered liberty"). The court's precedents make clear that it's only 1 factor.
Alito's opinions present that as a two factor test (it must be both "deeply rooted" and "implicit in the concept of ordered liberty"). The court's precedents make clear that it's only 1 factor.
The fundamental right to private consensual conduct? That's absolutely implicit in the concept of ordered liberty - but it's anything but "deeply rooted".
For most of the nation's history, "deviant" sex was a crime.
journalofethics.ama-assn.org/article/decrim…
For most of the nation's history, "deviant" sex was a crime.
journalofethics.ama-assn.org/article/decrim…
The fundamental right to contraception? Absolutely implicit in the concept of ordered liberty, absolutely not recognized in the United States until 1965
oyez.org/cases/1964/496
oyez.org/cases/1964/496
The right to marry a partner of your choosing, regardless of gender and across racial lines? Fundamental to ordered liberty, and not recognized until the late 20th century (for race) and just SEVEN YEARS ago (for gay marriage)
I don't know how else to put this except to say it like this: either the "deeply rooted" test means "flowing from first principles fundamental to ordered liberty" or it is repugnant.
Because otherwise, the law is "rights that are fundamental to ordered liberty are only protected by the Constitution if they were recognized 200 years ago"
And that means that absent the Constitutional amendment banning slavery, Alito would say slavery was Constitutional
And that means that absent the Constitutional amendment banning slavery, Alito would say slavery was Constitutional
It also ends up being a catch 22. By definition, any time SCOTUS is being asked to clarify whether something is a Constitutional right - no segregation, marriage, etc. - that right is not "deeply rooted" if your understanding of "deeply rooted" is "long and widely recognized"
After all, if it were long and widely recognized, it would never get to SCOTUS.
So no. "Deeply rooted" simply means "strongly anchored to and required by the fundamental principles of ordered liberty that the Constitution reflects"
So no. "Deeply rooted" simply means "strongly anchored to and required by the fundamental principles of ordered liberty that the Constitution reflects"
And that renders Alito's subsequent historical survey of abortion rights EXACTLY as out of place as a survey of historical laws banning interracial marriage is in an analysis of whether Loving got it right.
If you have a right to interracial marriage, then the fact that states violated that right for a long time is irrelevant.
If you have a right to an abortion, then the fact that states violated that right for a long time is irrelevant.
If you have a right to an abortion, then the fact that states violated that right for a long time is irrelevant.
Which brings us to Alito's second ... I hesitate to call it error because I'm not remotely convinced Alito actually believed a word he wrote.
The idea that "but this involves a fetal life/unborn person" meaningfully distinguishes abortion from the other ...
The idea that "but this involves a fetal life/unborn person" meaningfully distinguishes abortion from the other ...
intimately personal decisions that Alito's opinion recognizes are fundamental to ordered liberty: intimate sexual relations, marriage, contraception, etc.
And I can hear you screaming now, pro-life followers. How can I say that doesn't make all the difference?
And I can hear you screaming now, pro-life followers. How can I say that doesn't make all the difference?
Because it makes exactly zero difference to whether the right to control your own reproductive choices *exists*. It may impact the extent to which states can intrude on that right; your right to intimate sexual relations doesn't prevent the state from criminalizing rape.
It says nothing at all about whether the right exists.
And once you concede that a right to control your own reproductive choices exists, the "uncertainty" and "differing moral analyses" about the status of a fetus becomes a problem for an infringement of that right, rather than
And once you concede that a right to control your own reproductive choices exists, the "uncertainty" and "differing moral analyses" about the status of a fetus becomes a problem for an infringement of that right, rather than
a reason to allow that infringement.
Alito had a result he wanted to get to. He got there. But his legal reasoning was as fundamentally incoherent as the original Roe decision he castigated.
Alito had a result he wanted to get to. He got there. But his legal reasoning was as fundamentally incoherent as the original Roe decision he castigated.
One last point: The idea that "deeply rooted" and "fundamental to ordered liberty" are synonyms and a disjunctive test - if it's fundamental to ordered liberty, that's enough - is not just an "Akiva Cohen theory".
This is from another SCOTUS decision:
This is from another SCOTUS decision:
• • •
Missing some Tweet in this thread? You can try to
force a refresh
