(CNN)Justice Samuel Alito, in his draft opinion that would overturn Roe v. Wade, tries to make clear it should not necessarily impact other decisions such as the right to marry a person of a different race or same sex and the right to contraception, which rely on some of the same threads of legal reasoning as the abortion rights landmark.
In the draft, Alito said that what “sharply distinguishes” Roe, and the 1992 follow-up Casey v. Planned Parenthood, from those other cases is that abortion destroys “potential life.”
“None of the other decisions cited by Roe and Casey, involved the critical moral question posed by abortion,” he said. “They do not support the right to 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.”
But critics of the draft decision will take cold comfort in Alito’s words attempting to wall off abortion from everything else.
They believe that if Alito’s opinion is ultimately rendered, it will represent an opening salvo in a push to target other rights grounded in privacy and liberty. It will also destabilize the law by rendering the legal doctrine of stare decisis — the notion that courts should follow their precedents even if they disagree with them, to protect the cohesion of the law — a dead letter. And it will raise new questions about the politicization of the court.
Liberal Justice Sonia Sotomayor pinpointed these concerns at oral arguments in December. She noted that in Casey and Roe, the court said there is “inherent in our structure” the understanding that there are “personal decisions that belong to individuals and the states can’t intrude on them.” Then she listed cases concerning the right to contraception and the right to marry and said that “none of those things are written in the Constitution.” “They have all,” she said, “been discerned from the structure of the Constitution.”