As most already know, Politico recently leaked a draft opinion authored by Justice Alito which declares emphatically that Roe v. Wade and Planned Parenthood v. Casey should be overruled. That is not particularly surprising given his dissenting opinions in other cases. What is surprising is the breadth and scope of the opinion.

If the draft holds as a majority opinion as written, it could create a sea change in how individual rights are viewed and the laws affecting them are scrutinized.

This opinion is more than simply a denial of abortion rights. It could reshape what has come to be known as penumbrae rights popularized in the Griswold contraceptive case. In his draft opinion, Justice Alito relies heavily on a conclusion that right to an abortion has no tradition of protection and states can regulate any and all abortions with simply a rational justification. This suggests that it all boils down to convincing the necessary number of jurists of your rendition of history. Not surprisingly, according to some, Alito’s version of the history and tradition of abortion rights is not as clear as he presents (See recent opinion by UC Davis Professor Tang in the May 5, 2022, LA Times Opinion section The Supreme Court flunks abortion history (msn.com). Similarly, Chief Justice Taney relied on flawed history and pseudo-science in the infamous Dred Scott decision to conclude that African descendants were not citizens even if free.

Alito claims that his analysis is limited to abortion rights. But if fully adopted, his analysis could be applied to most of the so-called penumbrae rights. Justice Alito distinguished other penumbrae rights on the basis that they do not include a potential life, but he doesn’t explain how the other rights meet his traditional or historic protection at the time the 14th Amendment was adopted. So, they could be subject to a similar analysis.

Not surprisingly, pundits and scholars voice concern that rights such as same-sex and interracial marriage, prisoner sterilization, and even concepts such as separate but equal are once again on the table. Indeed, the authority of the court to be the final arbiter of Constitutionality of government action, except in the cases before it, may be in question. However, I personally don’t think any of that is likely.

Curiously Justice Alito seems to buttress his theory of limited constitutional rights on a theory that the Constitution’s primary, if not sole goal, is to ensure “ordered liberty.” Under this theory, only rights that are necessary for “ordered liberty” are fundamental. Bucking the trend of recognizing more individual rights in the wake of the Fourteenth Amendment, Alito finds that constitutionally protected rights include only those that have been enumerated in the Constitution or rights that have been historically or traditionally recognized at the time of constitutional enactment. All other rights are only subject to rational basis level of scrutiny where the challenger has the burden of showing there is no conceivable rational basis for the government action.

Currently, an insignificant restriction (one that does not create an undue burden) on the exercise of abortion rights does not require compelling justification. Alito’s total exclusion of women’s right to control her uterus adopts this approach by dismissing the argument that abortion rights is part of the broader right to autonomy. He doesn’t concede that autonomy meets his enumerated or traditional rights requirement to qualify as a protected fundamental right, but instead seems to argue in the alternative that even if personal bodily autonomy is a protected right, abortion is not part of that right.

Alito does not explain why the right to control one’s body and make decisions about it do not include a woman’s right to control her uterus, but instead creates a separate and distinct right as separate as murder is from the right to liberty. Indeed, few things would seem to be a more integral part of the fundamental right to make personal and private decisions about one’s own body.

The result of creating an unprotected abortion right separate from larger autonomy or privacy right is that instead of requiring the government to prove that any restriction on the exercise of a woman’s right to control her uterus is narrowly tailored to achieve a compelling goal, the government action is presumed to be proper, and the woman has the burden of proving the government's action is irrational. This is somewhat ironic when you think that the very essence of the word “woman” is derived from the concept of a human with a womb – a womb-man.

At this point, we can only speculate as to whether five justices will sign on to the draft opinion as written. It’s hard to imagine five justices would want to go down in history alongside Chief Justice Taney or have this court remembered in the same breath as the infamous Lochner era Courts and discredited cases such as Dred Scott, Plessy v Ferguson, and Korematsu. Some justices may recognize the fundamental right and prefer to simply find a compelling reason to protect the fetus.

I should note that the suggestion by commentators and politicians that Congress can pass a national federal law protecting abortion is problematic. On the other hand, a determination that a fetus at any stage is a person would subject any state law allowing abortion to heightened scrutiny in any constitutional challenge.

The Court's final opinion bears watching.