By Dave Andrusko
The pro-abortion response to Justice Samuel Alito’s opinion in Dobbs v. Jackson’s Women Health, leaked on May 2nd to Politico, is the classic example of misdirection. Not only is his draft opinion said to “constitute an acidic and unflinching repudiation of reproductive rights,” Justice Alito is also criticized for having “cherry-picked from the historical record” and for overruling Roe using reasoning that “could seemingly be applied to overrule other precedents.”
The Wall Street Journal put it this way: “The political campaign to save Roe v. Wade includes urgent warnings about all the other historic precedents that are now purportedly under threat. Listen instead to Yale Law Professor Akhil Reed Amar, who supports abortion rights but is honest enough to rain on this implausible parade of horribles.”
Access to contraception is supposedly at risk. (National Right to Life takes no position on contraception because it is outside our single-issue purview. The right was established by the Supreme Court in its 1965 Griswold v. Connecticut decision.)
Not so said Prof. Amar:
“Lib law professors, you’re just trying to scare people with boogeymen or something about ‘Oh, my God, Griswold is at risk,’” Mr. Amar said on his podcast last week, referring to the High Court’s 1965 precedent protecting contraceptive access for married couples. “Every single Republican Party platform for the last 40 years has said ‘we hate Roe,’” he countered. “There’s never been anything like that about Griswold.”
How can Mr. Amar be sure?
In his view, Griswold is a 9-0 case, “easy and obvious,” under the Court’s current approach of recognizing unenumerated rights that are “deeply rooted.” He also pointed out that conservative Justices were clear in their confirmation hearings about Griswold…
That includes Chief Justice John Roberts ; Justice Clarence Thomas; Justice Samuel Alito; Justice Neil Gorsuch ;Justice Brett Kavanaugh; and Justice Amy Coney Barrett.
“To review, the Supreme Court’s conservative Justices are on record as supporting a legal basis for Griswold in a way they haven’t been with Roe v. Wade.”
Mr. Amar’s conclusion?
“Seriously, this is not even, like, argument in good faith, that they’re actually trying to put Griswold in play,” he said. “America is not going to move forward if we keep utterly mischaracterizing what the other folks are saying and why.”