CNN has a good article here dealing with Alito's attempt to distinguish the court's ending the right to an abortion from other rights that were supported by similar Constitutional reasoning:
https://www.cnn.com/2022/05/04/politics/roe-alito-obergefell-loving/index.html
If the Constitution doesn't prevent a state from outlawing abortion, then how does it prevent them from outlawing contraception or gay marriage? Striking down Roe is done based on the idea that the Constitution doesn't expressly say that states can't outlaw abortion, and without an express statement, then the earlier high court shouldn't have "found" a right to an abortion to be implicitly granted by other language in the Constitution. The same reasoning could be used to give states the right to outlaw those other things that are grounded in privacy rights and the fourteenth amendment, as well. The Constitution doesn't expressly say you've got a right to marry someone of the same sex, or that the states cannot outlaw that, for example.
Alito tries to distinguish it by saying that those others don't involve the creation of a potential life. However, that's basically just a clunky bit of ad hoc verbiage similar -- a description, not reasoning. You could overturn any right with such verbiage, by distinguishing it from every other case merely by describing it (e.g., outlaw interracial marriage and say that other things don't involve people marrying someone of another race).
What has me even more worried, though, is the idea the court could use the fourteenth amendment in exactly the opposite way. Recently, conservative judges have shown a willingness to adopt radically broad readings of the fourteenth amendment in order to accomplish their political goals. They created a one-off rule in Bush v. Gore that said a particular state wasn't allowed to administer its recount a certain way because (notwithstanding all of history and precedent) that would run afoul of the fourteenth amendment. That's how they appointed Bush president. In McDonald v. Chicago, they radically reinterpreted the fourteenth amendment so that, for the first time in American history, federal judges could veto state gun regs. So, what's to prevent them from doing the same here, as a next step? In other words, what prevents them from saying that the 14th amendment requires states to treat aborted fetuses as murder victims, since the 14th amendment says states can't deny any person the equal protection of the law?
With the high court conservatives getting in the habit of using the 14th amendment to legislate from the bench, what could stop them from making abortion illegal in every state?
https://www.cnn.com/2022/05/04/politics/roe-alito-obergefell-loving/index.html
If the Constitution doesn't prevent a state from outlawing abortion, then how does it prevent them from outlawing contraception or gay marriage? Striking down Roe is done based on the idea that the Constitution doesn't expressly say that states can't outlaw abortion, and without an express statement, then the earlier high court shouldn't have "found" a right to an abortion to be implicitly granted by other language in the Constitution. The same reasoning could be used to give states the right to outlaw those other things that are grounded in privacy rights and the fourteenth amendment, as well. The Constitution doesn't expressly say you've got a right to marry someone of the same sex, or that the states cannot outlaw that, for example.
Alito tries to distinguish it by saying that those others don't involve the creation of a potential life. However, that's basically just a clunky bit of ad hoc verbiage similar -- a description, not reasoning. You could overturn any right with such verbiage, by distinguishing it from every other case merely by describing it (e.g., outlaw interracial marriage and say that other things don't involve people marrying someone of another race).
What has me even more worried, though, is the idea the court could use the fourteenth amendment in exactly the opposite way. Recently, conservative judges have shown a willingness to adopt radically broad readings of the fourteenth amendment in order to accomplish their political goals. They created a one-off rule in Bush v. Gore that said a particular state wasn't allowed to administer its recount a certain way because (notwithstanding all of history and precedent) that would run afoul of the fourteenth amendment. That's how they appointed Bush president. In McDonald v. Chicago, they radically reinterpreted the fourteenth amendment so that, for the first time in American history, federal judges could veto state gun regs. So, what's to prevent them from doing the same here, as a next step? In other words, what prevents them from saying that the 14th amendment requires states to treat aborted fetuses as murder victims, since the 14th amendment says states can't deny any person the equal protection of the law?
With the high court conservatives getting in the habit of using the 14th amendment to legislate from the bench, what could stop them from making abortion illegal in every state?