On Monday, May 2, Politico released a draft majority opinion on Dobbs v. Jackson Women’s Health Organization authored by Justice Samuel Alito. The leak ignited fears that the ultimate ruling would overturn the landmark Roe v. Wade decision. Roe established that the Constitution protected the right to an abortion and granted those with uteruses fundamental control over their bodies. This attack on Roe would disregard the principle of unenumerated rights, which have supported decisions in Loving v. Virginia and Obergefell v. Hodges, among others.
The Roe v. Wade decision was anchored in the Due Process Clause of the Fourteenth Amendment, which protects the “right to privacy”. Substantive due process concerns rights that are not enumerated in the Constitution, meaning that they are not explicitly mentioned. The Court has used substantive due process and the concept of unenumerated rights to protect American civil liberties for centuries after the nation was founded. When the Constitution was created, slavery remained legal and widespread, women were unable to control their own money, and there was no concept of LGBTQ+ as we know it now. These marginalized groups and their needs were not explicitly addressed in the Constitution, because they were barred from the room in which it was signed. Respecting unenumerated rights enshrines equality for all genders, races, and sexualities.
Despite their historical importance, the draft majority opinion dismisses the validity of unenumerated rights, arguing that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Justice Alito cites this as a reason to overthrow Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, which bolstered the abortion access established under Roe. The same reasoning could be used by the Court to overthrow decisions that have brought disadvantaged groups closer to equality, since civil rights such as interracial and same-sex marriage are also unenumerated rights.
In 1967, the Court ruled in Loving v. Virginia that Virginia’s antimiscegenation statute, which banned interracial marriages, was unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment. Chief Justice Earl Warren wrote that the statue, “...[deprived] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” With this decision, racist marriage laws across the country were struck down and interracial marriage, an unenumerated right, was protected.
In 2015, Obergefell v. Hodges granted same-sex couples the right to marry using similar reasoning to Loving v. Virginia. Justice Anthony M. Kennedy wrote in the majority opinion: “The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples.”
Justice Alito was on the Court at the time that Obergefell was heard and joined Chief Justice Roberts, Justice Thomas, and the late Justice Scalia in voting against the federal legalization of same-sex marriage. He wrote a separate dissent, which Justice Thomas and Justice Scalia joined, in which he used the same logic, and in many places the exact same language, as he does in the recently leaked draft. He argued that the Constitution did not explicitly address same-sex marriage, and therefore the issue should be left up to the states to determine whether “to depart from the traditional definition of marriage”. This wording is alarming, since it shows that he already has established his argument to overthrow Obergefell.
The draft majority opinion could set a dangerous precedent and overturn other civil rights decisions that hinge on the unenumerated rights concept. The conservative stacked court may be targeting abortion rights today, but tomorrow freedom of marriage and the right to privacy will also be in jeopardy. The upcoming midterm elections are an opportunity to choose candidates that reflect the demographics and values of a diverse American electorate. The recent actions of the Court have shown how our elected officials have a direct impact on judicial appointments, which in turn control the rights that we are granted. So vote for pro-choice candidates, candidates who are vehemently against racism and misogyny, and candidates that believe in freedom of marriage, regardless of gender or race. Because none of us are equal until all of us are equal.
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Kate Kramer is a member of the Blog Team at Project Stree, a non-profit dedicated to empowering young women and girls in India and providing them with sustainable period products.