DSW Staff Attorney Becca Cleary on Justice Alito’s Leaked Draft Opinion

May 6, 2022

Supreme Court Justice Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization (which could differ from the final version that has not yet been released) repeals Roe v. Wade and Planned Parenthood v. Casey primarily using the rationale that abortion is not mentioned in the Constitution. Roe is one of many cases that has identified privacy and liberty rights beyond the text of the Constitution; other cases within this greater doctrine include Loving v. Virginia (right to interracial marriage), Obergefell v. Hodges (same sex marriage), Lawrence v. Texas (repeal of sodomy laws/privacy right to consensual sex acts in one’s home), Griswold v. Connecticut (right for married couples to access contraceptives), and Eisenstadt v. Baird (right for unmarried couples to access contraceptives), among others.

While Justice Alito claims in his opinion that the Court’s decision here will not affect any other implied liberty rights, if the Roe repeal is based on abortion not being mentioned in the Constitution, future cases repealing implied constitutional rights can be decided on this reasoning. Probably most at risk are the two contraception cases (Griswold and Eisenstadt) due to the many pages discussing “unborn life” in this decision. But future courts could also rely on this opinion to chip away at other protections of bodily autonomy and sexual freedom, like in Lawrence. The contraception cases are especially vulnerable here based on this language specifically: “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’ None of the other decisions decided by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

In terms of how this affects the greater conversation around sex work, this reasoning can go on to affect sex workers’ ability to access comprehensive healthcare services including abortion and contraception access, and eventually may lead to protections of sexual freedoms being rolled back, further criminalizing sex in general and thus creating more danger for those already engaging in illegal sexual activity.

Notably, Justice Alito specifically mentions prostitution in his rationale for declaring abortion to not be a protected right — he says that if abortion is an implied right, then what will follow is protections for prostitution and illicit drug use. (“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.”) This is worth pointing out because prohibitionists generally support abortion access as a bodily and sexual autonomy issue, but draw the line at sex work; meanwhile, anti-abortion proponents seem to be opposed to protecting any bodily autonomy and sexual freedom.

Rebecca Cleary

DSW Staff Attorney Rebecca Cleary

DSW Newsletter #36 (May 2022)

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DSW Staff Attorney Becca Cleary on Justice Alito’s Leaked Draft Opinion

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