Katz: Leaked decision hints right to birth control, marriage and privacy are in danger

A leaked draft from the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito, showed that the majority of the justices supported immediately overturning Roe v. Wade, a Supreme Court decision that had protected women’s right to monitor and make decisions on their own reproductive health care.

The leaked decision draft horrified some of us because it clearly limits women’s rights.

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But we should all be concerned because Justice Alito’s opinion would negate much of our due process and other court-found rights.

He opined in his first version of the majority opinion that the Supreme Court was “far outside the bounds of a reasonable interpretation of various constitutional provisions” when it decided Roe.

He tries to hide the radical nature of his Constitutional analysis and historical pronouncements by saying the states, not the federal government, should decide whether women can have abortions.

His argument that in deciding Roe, the court overreached—acting like a legislative body and affirming rights not in the Constitution—has implications far beyond the major problems that the ending of balancing women’s rights to decide their own health care needs causes childbearing-aged women, especially those with limited resources.

Rights such as privacy, the post-Comstock laws freedom to purchase and use contraceptives, the right to marry based on the Due Process Clause of the 14th Amendment are now endangered, in part because they didn’t exist when that Amendment was written and ratified.

Other rights also not clearly in the U.S. Constitution or its amendments from the federally mandated limits on work hours, the civil rights laws, and others based on the dormant commerce clause are also threatened, given his and perhaps other carefully vetted Justices’ interpretation of the U.S. Constitution. It means a radical adjustment for all of us if the negation of rights we have become accustomed to becomes the law of the land.

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Many are celebrating the end of Roe.

Some call themselves “pro-life” pretend to care for the life yet to be born, but fight against programs designed to help those who are already here.

To many of us who are not pro-abortion, but support the right to the procedure if a woman deems it necessary, the ending of Roe seems to be a step toward more women dying and less toward preserving and protecting life. With the focus on Roe, we don’t think about the other changes that might emerge based upon the Alito analysis of the U.S. Constitution.

Some seem to be trying to distract uninformed people from the removal of rights of women and the potential ending of other rights based upon the Alito constitutional analysis.

They mount a “radical libs are at it again” argument, focusing on who publicly released the draft, pointing fingers at liberals and feminists as destroyers of the privacy of the justices’ deliberations.

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Ironically, Dr. Jonathan Peters, a media law professor at the University of Georgia, says that almost 50 years ago, the original decision of Roe was leaked before the Supreme Court announced its decision, infuriating then-Chief Justice Warren Burger.

And if there is no constitutionally protected right of privacy because a privacy right did not exist when the 14th Amendment was written, why be upset about the leak?

Forget the distracting rhetoric. Justice Alito’s opinion is disconcerting. Whether the final decision would have emerged as is if it hadn’t been leaked is unclear.

Perhaps, the leak will force the justices to issue a less radical final decision. Or we could be returning to a 19th century understanding of the law.

Janyce C. Katz was an assistant attorney general for almost 25 years and currently works at General Innovations and Goods, Inc.

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This article originally appeared on The Columbus Dispatch: Opinion: What other rights could be affected by overturning Roe v Wade