'The legal reasoning by Alito and his allies in the Dobbs case is a devastating and unnecessary attack on foundational protections and rights.'
argued that the right of married couples to use contraception falls within a more general “right to privacy” and that this more general right itself derives from specific rights explicitly stated in the Constitution: the right of free association in the First Amendment, the right of domiciliary exclusion in the Third Amendment, the right to be secure “against unreasonable searches and seizures” in the Fourth Amendment, and the right against self-incrimination in the Fifth Amendment.
According to Justice Douglas, these specific rights of privacy are both more “secure” and more “meaningful” if it is assumed that the Constitution does indeed contain a general right to privacy. By analogy, our First Amendment right to freedom of speech is more robust, less vulnerable to government intervention, if we interpret it broadly rather than narrowly — that is, if we interpret it to protect not merely the right to speak but also the rights to think, read, publish and teach.
While Justice Alito does not deny a general right to privacy, he also does not affirm it. This ominous omission leaves the right to privacy, and therefore all the specific autonomy rights that have been predicated upon it — not only the right to use contraception but also the right to interracial marriage, to gay marriage, to consensual sodomy, to non-nuclear-familial cohabitation, and to refusal of medical assistance — vulnerable to eradication in one fell swoop.
It may seem to make sense at first for Justice Alito to say that such intractable values-conflicts should be worked out by the people through their elected representatives, rather than letting a small number of unelected judges work it out by themselves. But this is a strange thing to say, especially for supposedly conservative justices who purport to respect history and the judiciary.
This kind of cowardly “punting” to other decision-makers — who will be equally unable to bring about anything close to universal consensus — is only likely to cause serious hardship, suffering, and chaos for millions of Americans. And none of this was necessary.
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