I’ve never liked the term unenumerated rights because the point is not whether they are numbered but whether they are expressed, so until now, I have avoided it in my comments on this decision. But that’s the standard legal term and what the decision is about. Thus this post.
Extreme conservatives have always HATED the legal theory of there being unenumerated (not specifically stated) rights implicit in the general concepts of the Constitution because they believe that they should have the power to impose constraints on others’ private lives. No, you cannot, if you are a woman, control your own reproduction (contra Roe v. Wade and Planned Parenthood v. Casey). No, you cannot marry across racial lines (contra Loving v. Viginia). No, you cannot use contraception (contra Griswald v. Connecticut). No, you cannot smoke marijuana. No, you cannot sell sexual services. No, you cannot sleep with someone of the same sex (contra Lawrence v. Texas). No, you cannot marry someone of the same sex (contra Obergefell v. Hodges). No, you cannot adopt a gender identity different from your biological sex. No, you cannot bring water or food to someone standing in line for hours to vote. And so on.
And that’s the larger point of the Alito decision. It is not just a decision about abortion rights. It is a template for decisions about this AND other unenumerated rights. Even as it overturns Supreme Court precedent on abortion, it serves as a precedent for overturning an entire body of law based on unenumerated rights, and if you actually read the decision (how many have?), you will find that it was carefully written to lay out IN GENERAL the theory for overturning that body of law and its associated rights. The decision is revolutionary and is meant to be.
Lest anyone think I am exaggerating about the scope of this decision (beyond abortion), let me quote from it:
“Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas . . . (right to engage in private, consensual sexual acts) and Obergefell v. Hodges, . . . (right to marry a person of the same sex). . . . These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s concept of existence prove too much. . . . Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. . . . None of these rights has any claim to being deeply rooted in history.” [Earlier in the opinion he argues that being deeply rooted in history is one of the acceptable arguments for an implied but not explicitly stated right.]
So, there you are. He lays here the groundwork to throw the legality of homosexuality and gay and lesbian marriage back to the states.
My dear friend Greg Brozeit, who is fluent in German and a profound scholar of modern German history, has made the point that the now extremist Republican Party in America–the party led by the man who wanted police and the military to SHOOT BLM protestors and unarmed asylum seekers–intends to seize control in this country and impose fascism and that in order to do this, it will have to establish a legal framework that enables that. It will use the law to clothe fascism in traditional American garb. And you accomplish that end by getting the right judges in place and passing the right laws and getting the imprimatur of the courts on those laws–ones that eliminate in one fell swoop whole bodies of rights under the law and give the state the power to use its monopoly on violence to ensure that those rights are not exercised. So, in Germany, you couldn’t have the Nazi government without the Enabling Act and its imprimatur by German courts. We are Germany in 1932.
So, beyond simply women’s reproductive rights, as important, as essential as those are, there is this more general problem with the Alito decision. It is a plug-and-play boilerplate for eliminating the whole body of law related to unenumerated rights and thereby eliminating those rights. You might think of it as a kind of Bill of anti-Rights. It is a revolutionary document, akin to a revised, fascist Constitution for a new, Trumpier American government, a far more powerful coercive state.
As Diane Ravitch wrote after the leak of the Dobbs decision, abortions will continue; they will just be a lot more dangerous.
Women will die because of this. And many others (along with their allies) will be imprisoned. Several states already have laws or ones under consideration or that will be triggered by this decision, that will pay vigilantes to go after these people, that will charge people who have abortions and those who perform them with murder, that will criminalize ordering or selling abortifacients and going out of state to get an abortion or helping others to do these things, that will use various coercive means to track women’s reproductive state, and so on.
Again: abortions will continue. They will just be a lot more dangerous.
About half of all abortions are now done with pills, specifically, with the abortifacients mifepristone and misoprostol.
One way to think of the Alito decision is as a jobs-creation program for the illegal drug cartels.
And a whole body of laws recognizing various liberties, based on unenumerated rights, will disappear and be replaced by coercive command and control by a fundamentalist, nationalist, fascist state.
What happens when the Repugnicans gain control of all the reins of power–the House, the Senate, the Extreme Court, and the Presidency? Well, Alito, Thomas, and their ilk are extremely backward and out of touch and so have no idea what they are about to unleash. There will be a lot of pushback in the streets. And the nationalist state will respond with violence, which will create more backlash, in a negative feedback loop (this didn’t happen during the IQ45 maladministration only because Milley, Esper, and even Barr, after tentatively fielding his own little green men, told Trump, “No.”
So, what is the Alito decision all about? Well, it begins laying the legal framework for the end of democracy. The other pillar of that framework is, of course, Citizens United v. Federal Election Commission. It is by means of decisions like these that the now minority party in the U.S., the Greying Old Party (GOP), rises phoenixlike from the ashes it has made of democracy. Or, to change up the metaphor, fasten your seatbelts, extreme turbulence ahead.