The Left’s Disinformation Explosion Over the Alito Draft

Progressives are having a field day claiming that Justice Alito’s draft abortion opinion, which would overturn Roe v. Wade, will also lead to overturning the constitutional right to same-sex marriage in the Obergefell decision. But if you read the decision, Alito takes pains to say that it won’t. Some excerpts:

Page 5:

>>Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being”<<

Page 62:

>>Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States as Amicus Curiae 26 (citing Obergefell v. Hodges, 576 U. 8. 644 (2015); Lawrence v. Texas, 539 U. S. 558 (2008); Griswold v. Connecticut, 381 U. S. 479 (1965)). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[abortion is a unique act” because it terminates “life or potential life.” 505 U.S, at 852; see also Roe, 410 U. 8., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). 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.<<

Yet this is what we’re seeing throughout the progressive press:

Draft Roe v. Wade ruling sends panic through LGBTQ community: ‘They’re coming for us next’

Gay marriage, other rights at risk after U.S. Supreme Court abortion move

From LGBTQ rights to interracial marriage, abortion ruling could be map for GOP’s next push

Plaintiff in landmark same-sex marriage case worries marriage equality is at risk if Roe falls

And on and on. Pure fear porn meant to galvanize the knee-jerk base.

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9 Comments for “The Left’s Disinformation Explosion Over the Alito Draft”

  1. posted by Jorge on

    I haven’t finished read it.

    I will say that I’ve read some claims online that the literal text says that such rights as interracial marriage, contraception, and gay marriage aren’t historically supported, and they put in quotes that you can tell are not the full quotes. I went to the page to look it up, and I saw it was out of context. Alito was talking smack about prostitution and illicit drug use instead.

    I think what looks to be happening is actually exactly what happened with Lawrence v. Texas. In another decision decades before, dueling intellectual giants battled it out in majority and dissent. Then, a newer court picked sides with the previous loser. In Lawrence, the majority adopted Justice Stevens’ old dissenting reasoning, and Stevens did not write the lead dissent. I made a campaign to read Planned Parenthood v. Casey before this decision would come out to see if my theory would be right, and I think it is. “Scalito’s” draft adopts a mix of Scalia’s and Rehnquist’s, in saying that abortion is mentioned nowhere in the Constitution”, questioning how stare decisis comes into play in a decision that already departs markedly from Roe, and number of other observations.

    And what’s also interesting to me is that both Casey as well as Bowers v. Hardwick each had two major dissenting authors who competed with each other for support among the other justices. That, or perhaps the authors of the secondary dissents (Stevens and Scalia) made for some very high quality writing that allowed a future Supreme Court some choice in perspectives to adopt.

    So, far from being a decision that imperils gay rights, I think one should rather consider that the casual arrow is in the other direction: the very qualities of the Supreme Court that allowed it to make major gay rights decisions are what allowed to make a major reversal on abortion rights.

    Reply
  2. posted by Ray Eckhart on

    Walter Olson:

    >>My piece of four years ago: “Gay marriage is here to stay, even with a conservative Court.” I wrote the piece fully aware (since it was clear then) that conservative Justices would overrule Roe if they could. None of the eight reasons I gave hinge on that.<<

    https://www.facebook.com/walter.olson.121/posts/10160111190635421

    Reply
  3. posted by Kosh III on

    “Alito takes pains to say that it won’t. ”
    So? He lied. Kavanaugh lied, Gorsuch lied.
    Alito, like Scalia is projecting his personal views.
    If Alito only wants those things that are embedded in our history then he should be advocating for slavery and forbidding women to vote.

    Reply
  4. posted by Kosh III on

    “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”

    Right. This decision is about abortion ONLY so discussing other topics is not appropriate.

    Wait until a case on equal rights shows up and THEN he can opine on why we are undeserving of equal rights.

    Reply
  5. posted by Ray Eckhart on

    I also think it’s worth mentioning Randy Barnett’s analysis after Lawrence v. Texas which notes the distinctions in judicial thinking between that decision and those in Roe v. Wade and Griswold v. Connecticut. To my mind, it opens up a mechanism for potentially successful challenges to total abortion bans in states that implement them.

    Download Full Paper here:
    https://scholarship.law.georgetown.edu/facpub/838/

    Layperson Article Explanation here:
    https://www.nationalreview.com/2003/07/kennedys-libertarian-revolution-randy-barnett/

    Reply
    • posted by Jorge on

      I’ll take a look once I’m done with Alito’s draft.

      Reply
  6. posted by Tom Scharbach on

    And what’s also interesting to me is that both Casey as well as Bowers v. Hardwick each had two major dissenting authors who competed with each other for support among the other justices. That, or perhaps the authors of the secondary dissents (Stevens and Scalia) made for some very high quality writing that allowed a future Supreme Court some choice in perspectives to adopt.

    You might want to read the Obergfelt dissents (Roberts, joined by Scalia and Thomas; Scalia, joined by Thomas; Thomas, joined by Scalia; and Alito, joined by Scalia and Thomas) and consider the arguments and the language contained in Alito’s draft opinion. If you think for a second that the arguments in Altio’s draft opinion are not applicable to Obergefell, you read the Obergfelt dissents again more carefully.

    Reply
    • posted by Jorge on

      I firmly believe Obergefell was wrongly decided.

      Reply
    • posted by Tom Scharbach on

      “I firmly believe Obergefell was wrongly decided.

      You are not alone, by any means. As Alito’s draft makes clear, the entire line of “unenumerated rights” cases (that is, rights incumbent to the 9th and 14th amendments but not specifically enumerated) beginning with Griswold, were wrongly decided in his opinion. Altio’s opinion is commonly held among conservatives, and has been the touchstone of the “original intent” and “textual analysis” analysis by conservative jurists and commentators.

      Alito distinguishes Roe from Griswold and its progeny (e.g. Romer, Lawrence, Windsor, Obergefell) by arguing that Roe involves the question of taking human life while the others do not. That distinction, while accurate, is arbitrary and is thin ice on which to believe that other constitional decisions that depend on “unenumerated rights” will not be overturned.

      As Scalia pointed out in his Lawrence dissent, if legislatures were prevented from criminalizing sodomy because unenumerated rights under the 9th and 14th Amendments prevented legislatures from basing laws on “moral approbation”, then legislatures could no longer prevent gays and lesbians from being granted equal treatment under the law, and Obergefell was inevitable. The converse is also true.

      That is not to say that the Griswold line will be overturned immediately or that Alito’s draft speaks to the decision that will be rendered in June. It will probably be a decade or more before Griswold is overturned, and it is important to keep in mind that Alito’s draft is not the final opinion. My guess is that although Alito, Barrett, Gorsuch, Kavanaugh and Thomas will join in the result, we will see a plethora of “concurring in part” opinions by Justices among the majority, and that those opinions will muddy the water in terms of a frontal attack on Griswold and its progeny.

      After Roe has been overturned, the battle will turn to “morning after” pills and methods of contraception that prevent post-conception implantation. Those cases will consume the Court for a number of years before the Court takes up cases directly assaulting Griswold and progeny.

      Reply

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