In January 2006, Charles Fried was asked to testify before the United States Senate on whether his former colleague, Judge Samuel Alito, would revoke his right to abortion if he was appointed to the Supreme Court.
As U.S. Attorney General in 1989, Fried had argued on behalf of President Ronald Reagan that Roe v. Wade, the historic 1973 Supreme Court case that enshrined the right of Americans to terminate a pregnancy, was decided. by mistake and should be canceled.
Since then, however, the new jurisprudence had put the right to abortion on a much firmer footing, causing Fried to change his stance. He told senators that Alito as a judge had remained “in the mainstream,” though “toward the right bank of the mainstream,” and that while he could be wrong, he believed the new judge of the Court Supreme would respect the precedents and let Roe stop.
“Well, my face is red with that,” Fried now recalls in The Independent.
Last month, Judge Alito caused shock waves when his draft ruling overturning Roe v. Wade was leaked to Politico. Giving the majority opinion on a Mississippi law that had attempted to restrict abortion, in a case known as Dobbs v Jackson, he wrote that “Roe was grossly wrong from the beginning” and that the right to abortion it was not “deeply rooted” in the United States. history.
This ruling would reverse nearly 50 years of precedent and allow Republican state governments to effectively ban abortion in a large part of the U.S., restricting the rights of tens of millions of women. However, jurists and civil rights pioneers say that Alito’s arguments could also allow the Supreme Court to override major LGBT + rights, such as the right to gay marriage, the right of gay spouses to benefits, and recognition. of the government, and even the right to gay sex.
“I’m terrified and people should be terrified,” says Jim Obergefell, whose lawsuit against Ohio State led the Supreme Court to rule that gay marriage was protected by the U.S. Constitution.
“This is a signal to people who oppose marital equality, who oppose LGBT + equality, who oppose progress, by giving them real words that they can use in a lawsuit to challenge something. And it is a signal to the state judges and the federal courts that if the cases are faced with this argument, the Supreme Court could be on your side. “
Proponents of her case have been working to make the actual transcript of this statement available online. (Photo by AP / Jacquelyn Martin)
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A conservative government with radical ambitions
When the Supreme Court voted 7-2 in favor of “Jane Roe” in 1973, it did so on the basis of one of the most controversial clauses in the U.S. Constitution, added after the Civil War.
The 14th Amendment, which was only ratified by rebel states under military occupation and the threat of being expelled from Congress, states that “no state shall deprive any person of life, liberty or property without due process. legal process “.
In the 20th century, the Supreme Court began to interpret this clause as giving Americans “unnumbered” rights not explicitly mentioned in the Constitution, including the right to privacy and to be free from government interference in fundamental choices. about the body itself, such as abortion.
Roe v Wade was controversial at the time, even some liberal scholars accused the court of flawed reasoning. But when the court reviewed abortion rights in 1992, with the case of Planned Parenthood v Casey, Roe upheld it in part by citing a legal principle known as stare decisis (Latin for “supporting decisions”), which he asks judges that they resist annulling previous sentences. unless they are seriously mistaken.
Alito’s draft opinion in Dobbs v Jackson leaves it all behind. Citing previous rulings that unlisted rights based on the “due process” clause must be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of orderly freedom,” he argues that there is no such thing. has “zero” support for U.S. law for a universal right to abortion and that Roe “has been in collision with the Constitution since the day it was decided.”
Supreme Court Judge Samuel Alito
(AP)
Alito then goes further, listing a number of other cases decided in part by the due process clause, including Skinner v. Oklahoma in 1942 (which argued that Americans cannot be sterilized without their consent), Griswold against Connecticut in 1965 (which recognized the right to contraception). , and Loving v Virginia in 1967 (which banned racial restrictions on marriage).
It also lists Lawrence v. Texas in 2003 (which repealed anti-sodomy laws), the United States v. Windsor in 2013 (which required the federal government to treat same-sex marriages as heterosexual marriages), and Obergefell v. Hodges in 2015 ( which established the right to gay marriage).
Alito concludes that none of these rights “have any claim to be deeply rooted in history.” In other words, they could be as unconstitutional as Roe and Casey in Alito’s eyes, and any other justice that matches his opinion.
In fact, the existence of the opinion suggests that four other judges have already voted to overturn Roe, reflecting the court’s powerful new conservative majority. Six of the nine magistrates were appointed by Republican presidents, and are current or former members of the conservative Federalist Society; three were nominated by Donald Trump.
It’s a historic victory for the Republican Party, which blocked the nomination of Merrick Garland for a vacant seat in the Supreme Court during the last nine months of Barack Obama’s presidency, only to overcome a conservative election of President Trump in just 38 days. just before the 2020 elections.
At risk: gay marriage, gay sex and transgender health care
Fried, now a professor at Harvad Law School, was reminded of Alito’s arguments by a joke from his opponent when he argued against Roe on behalf of President Reagan in 1989.
In presenting his case, Fried told the court that he did not oppose the whole fabric of unlisted rights, such as the right to contraception; I just wanted to pull a thread. His opponent replied that if you pull a thread from a wool sweater, the sleeve falls off.
“What makes Alito’s draft is, of course, that it rolls up its sleeve,” Fried says. “Roe’s opinion was very vulnerable, but Casey was in a very strong position constitutionally, because he talks about the dignity of women and the importance of being able to choose their own life plan … the case of gay sex, in the case of gay marriage, they’re all in this kind of argument … it would wreak havoc. “
He adds that the majority opinions of Casey, Lawrence and Obergefell were written or co-written by retired Judge Anthony Kennedy, who was appointed by Reagan in 1988, thus linking his legal arguments.
Jim Obergefell speaks during the national LGBT 50th Anniversary ceremony on July 4, 2015, in front of Independence Hall in Philadelphia.
(Copyright 2022 The Associated Press. All rights reserved.)
Jim Obergefell himself first learned about Alito’s leaked draft while he was reading in bed and immediately felt “sick of [his] In addition to a blow to women’s rights, she saw her broad language as a “clear call” for conservative activists and Republican state governments to pose legal challenges to LGBT + rights and an arsenal of arguments they can use for Fez. -ho.
He points out that with the right to marry come many other rights: to inherit your spouse’s property without paying taxes, to visit your spouse when he or she is in the hospital, to appear next to your spouse on your child’s birth certificate, access to tax benefits for married couples. , have access to a family plot of the cemetery, and be entitled to family leave of absence from their place of work.
“Justice Aliito’s reasoning jeopardizes all these rights,” said Erwin Chemerinsky, a veteran constitutional scholar and dean of the Berkely School of Law, who testified against Alito’s nomination. dangerous “deference to the executive branch.
“Protecting the rights of gays and lesbians does not work [Alito’s] criteria … the current court would decide these cases differently and cares little about following the precedent “.
A new Gallup poll shows that support for gay marriage has risen to a new high of 71%.
Paul M Smith, a lawyer who successfully led the challenge against sodomy laws in Lawrence v Texas and is now senior vice president of the Campaign Legal Center, also tells The Independent that Alito’s reasoning would apply to this case. And Roberta Kaplan, who cracked down on the federal boycott of gay marriage in Windsor, told Grid News that gay couples should “get married right away, if you’re ready, of course.”
The ruling could also jeopardize the progressive challenges against the wave of anti-transgender bills currently sweeping the Red States, which seek to ban gender-based medical treatments for trans people under the age of 18 or ban sports. schoolchildren. These also involve the fundamental right to determine what happens to a person’s body.
Members of the Supreme Court pose for a group photo at the Washington Supreme Court on April 23, 2021. Sitting from the left are Associate Judge Samuel Alito, Associate Judge Clarence Thomas, Chief Justice John Roberts, Associate Judge Stephen Breyer and Associate Judge Sonia Sotomayor, On the left are Associate Judge Brett Kavanaugh, Associate Judge Elena Kagan, Associate Judge Neil Gorsuch and Associate Judge Amy Coney Barrett.
(Supreme Court)
When a federal judge last month blocked Alabama’s “Vulnerable Child Protection and Compassion Act,” which bans puberty blockers and hormone therapy for trans children, it did so in part based on the clause. of the due process of the 14th Amendment. “Plaintiff parents have a fundamental right to direct their children’s health care.”
In fact, Fried fears that the impact may go beyond LGBT + rights. Cited in 1977 Moore v …