What the Leaked Abortion Opinion Gets Wrong About Unenumerated Rights

Leaked opinion “1st Draft” of the U.S. Supreme Court Dobbs against Jackson Women’s Health OrganizationThis was published by yesterday PoliticoWould, if released by Court officials, reverse both Roe v. Wade(1973). Casey vs. Planned Parenthood (1992), The key precedents that secured a woman’s constitutional right of termination.

Justice Samuel Alito is the author of the draft opinion. He makes the usual conservative argument in favor of abortion rights. Alito wrote, “The Constitution does not make any reference to abortion, and no such right can be implicitly protected or guaranteed by any constitution provision, even the one that the defenders are relying on.” RoeAnd Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. This provision is held to provide some rights not listed in the Constitution. However, any right such as this must be “deeply rooted” in our Nation’s history or tradition and “implicit in order liberty.” Alito says, “The right for an abortion doesn’t fall under this category.”

However, there’s at least one way the unsnumerated are at risk. DobbsThis category may well include you. This is why the right of termination may be seen as part and parcel of bodily integrity. Indeed, the history of bodily integrity has an impressive pedigree. Sheldon Gelman, a legal scholar, outlined this fact in 1994. Minnesota Law ReviewThe Magna Carta is the origin of the bodily integrity right. This makes it one among the rights that “retained the people”, according to the Ninth Amendment. It was also used in English law as a basis for the Constitution.

This is the constitution right that’s at stake DobbsOnly the narrow definition of the right fails to pass the “deeply embedded” test in history or tradition. But when the right is defined broadly—defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.

It is interesting to recall the words of Stephen Macedo who in 1986 was arguing with Robert Bork. He said this in a memorable analysis of America’s constitutional system. “Conservatives such as Bork view rights as islands surrounded in a sea government powers. This reverses the views of the founders as set forth in the Constitution. In which government power are restricted and specific, and made as islands surrounding a sea individual rights.