FACT CHECK: Alito Decision on Abortion Specifically Denies Other Personal Rights Affected by Reversing Roe

Samuel Alito (Erin Schaff-Pool / Getty)
Erin Schaff-Pool / Getty

CLAIM: The Supreme Court’s impending reversal of Roe v. Wade (1973) means “a whole range of rights are in question.”

FALSE: The majority specifically confines its decision to abortion, which is unique because it involves potential human life.

Supreme Court Justice Samuel Alito explicitly rejects the claim made by President Joe Biden and others on Tuesday that reversing Roe v. Wade means undoing all other Court rulings on social issues or undermining private rights in other cases.

Alito’s opinion for a 5-4 majority of the Court in Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law banning abortion after 15 weeks of pregnancy, was published by Politico on Monday after an unprecedented leak.

On Tuesday, President Biden reacted to the decision by warning that reversing Roe would mean undoing the right to contraception in Griswold v. Connecticut, and other rights involving privacy. “If the rationale of the decision, as released, were to be sustained, a whole range of rights are in question.”

Biden’s arguments were echoed by other left-wing pundits, and who warned that the right to interracial marriage in Lawrence, the right to same-sex marriage in Obergefell, and other rights were in danger.

Some even claimed, falsely, that Alito specifically linked his rationale for overturning Roe to these other cases. But Alito, in fact, distinguished the decision in Roe from these other cases, because only abortion involves taking a potential human life.

Alito began that portion of his argument (page 31 on the leaked draft) by noting that Casey v. Planned Parenthood (1992), a follow-up to Roe, defended the right to abortion by citing precedents establishing many of these other rights, which he listed.

Alito then noted that the right to privacy was not absolute: if it were, it would “license fundamental rights to illicit drug use, prostitution, and the like.” Moreover, he said, abortion was different from the many other rights the Court had recognized:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both these 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.” See Roe, 410 U.S., at 159 (abortion is “inherently different”); Casey, 505 U.S., at 852 (abortion is a “unique act”). None of the other decisions cited 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.

Alito then turned to the argument that without abortion rights, people might not be able to choose “the types of relationships they desire,” and that women might not be able to compete with men in the workplace. Those, he said, were policy arguments, not arguments about rights, and such policy arguments belonged within the purview of the states, not the courts. He added that the pro-life side also made policy arguments, and that the proper venue for that debate was in legislatures.

Later in the draft decision, Alito again addressed the argument, put forward by the Biden administration’s solicitor general, that reversing Roe would affect other rights. He cited Casey, which itself recognized that abortion is “a unique act” because it ends “life or potential life.” He also cited Roe, which distinguished abortion from “marital intimacy.”

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Alito’s opinion is apparently joined by Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts apparently would have upheld the Mississippi law, but sided with the Court’s liberals against overturning Roe.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.


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