All Rights reserved
I've been digesting the appalling leaked draft Supreme Court opinion in Dobbs v. Jackson Women's Health. It's marked as a draft from two-three months ago. Still, the fact of its leak together with the information reported by Politico about the court's preliminary voting is stunning -- almost as stunning as the draft's caustic disregard of women's core rights of privacy, moral agency, and control over our bodies.
Probably at least since the national tutorial in the Senate Judiciary Committee in 1987 about the many constitutional underpinnings of our privacy rights during the hearings on the ill-fated Supreme Court nomination of Robert Bork, it has been broadly understood that one of our Constitution's top jobs is protecting individual rights -- including personal privacy -- from government overreach. The Constitution is not an index or catalog. And the fact that particular words do or don't appear is not useful in determining when we lose the ability to control our own personal lives. But evidently, the draft's author, Justice Samuel Alito, disdains that understanding and those who hold it.
All's to say if this draft actually reflects the will not just of Justice Alito but a majority of the Supreme Court, we have entered an era of judicial activism unlike anything this country has seen for a hundred years. To me, this unprecedented leak itself seems like a cry for anticipatory public fury and engagement, lest those justices now planning to join Alito's manifesto do so somehow unaware of the impact such a decision will have on the court's reputation, let alone on American lives and our society's functioning.
How much of a threat does it pose to the rights of same-sex couples and LGBTQ+ individuals? That probably depends on public reaction. The 1986 Bowers v. Hardwick majority and angry dissenting language from our 2003 win in Lawrence v. Texas both recited the number of anti-sodomy laws in place at the birth of our country and at various times before and since as reason to retain those laws. If our due process rights to "ordered liberty" are to be limited to those rights enjoyed by white male landowners wearing wigs and tricornered hats, the Constitution will fail utterly to do the job our founders intended it to do. And while it's true that abortion is unique in some ways, its use as a political weapon to drive extreme-right voters is anything but, as state legislatures have proven again and again in recent times with their frenzies of opportunistic, cruel anti-LGBTQ+ bills.
Let's be clear: Justice Alito has not reserved the contempt that drips from the pages of this leaked draft for abortion rights. His 2020 dissent in Bostock similarly mocked at self-indulgent length the court majority's conclusion that LGBTQ+ people are protected under our federal employment nondiscrimination law. He has had company in dissenting angrily from the other recent decisions affirming our rights, and he joined Justice Thomas's eyebrow-raising "statement" when the court rejected Kim Davis's petition for review, in which these two invited more cases giving the court opportunities to revisit and reverse Obergefell v. Hodges, our marriage equality victory.
If this leaked draft is indeed the final, contemptuous dismissal of the body of law that has had profoundly liberating effects for generations of American women and others needing sexual and reproductive freedom, the dire consequences for all of those other rights are not foreordained. But anyone who assumes those rights remain secure needs to open their eyes. The approach Justice Alito used to rebuke Roe v. Wade could easily be used to remove federal constitutional protection from most of what shapes our modern lives as women and LGBTQ+ people. It is our responses as individuals and as a movement that ultimately will determine whether or not we wake up in a country resembling Gilead of The Handmaid's Tale.
Jennifer C. Pizer is senior counsel and director of strategic initiatives at Lambda Legal.