Justice A lito’s Shadow

Amelia Craig Cramer is a long time supporter and member of Arizona List.

This article was originally published in the Arizona Daily Star 

Justice Samuel Alito’s legal reasoning in his leaked draft opinion in Dobbs v. Jackson — which would have the Supreme Court overturn Roe v. Wade — reveals in his shadow the specter of a slaveholder.

Our Constitution does not contain specific words articulating a right of privacy or bodily autonomy. Why not? Because that would have outlawed slavery. Our flawed founding fathers decided to compromise their disagreement to allow the southern states to continue the enslavement of people, despite the fact that slavery was inconsistent with their other ideals.

It was not until 1867 that the 13th, 14th, and 15th Amendments abolished slavery and involuntary servitude (except as punishment for a crime) and guaranteed equal protection of the laws and the right to vote.

A century later, in 1965, the Supreme Court in Griswold v. Connecticut recognized in the ‘penumbras (shadows) and emanations’ of the First, Third, Fourth, and Ninth Amendments an implied and inherent right of personal privacy that was broad enough to encompass bodily integrity, thus permitting the use of birth control by married couples, something which had previously been banned.

The Third Amendment prohibits quartering soldiers in a private home without the owner’s consent. The Fourth Amendment prohibits unreasonable searches of a private home or of a person’s body without consent. The Ninth Amendment says the enumeration or listing in the Constitution of certain rights shall not be construed to deny other rights retained by the people.

The Supreme Court later applied this reasoning to hold that the right of personal privacy extends to the right of unmarried couples to use birth control, and the right of a woman to choose an abortion. The right also was recognized by the Court to extend to the right of a patient to refuse forced medical treatment, thus allowing do-not-resuscitate orders.

In a series of cases decided between 1965 and 1990, the Supreme Court recognized and re-affirmed repeatedly that the right of personal privacy is inherent in the Bill of Rights and is therefore one of the unenumerated rights recognized by the Ninth Amendment. It is also consistent with the Declaration of Independence which demanded recognition of every person’s rights to life, liberty, and the pursuit of happiness.

But Alito’s draft opinion in Dobbs, if approved by a majority of the Supreme Court, will take all that back.

Alito’s analysis ignores the clear intent of the Ninth Amendment to accord broad civil rights including the right to personal privacy. His draft opinion declares there was never any constitutional right to bodily integrity or to privacy in one’s personal and intimate affairs or in one’s medical affairs. Not only forced child-bearing, but also forced resuscitation and other forced medical treatment will come next.

Alito’s reasoning takes us back to a time before the 13th, 14th and 15th Amendments, all the way back to the original intent of the flawed founding fathers who wanted to preserve their authority to maintain bodily control in the form of slavery. It ignores the compromise by the founding fathers that left the possibility for an amendment to the constitution to ban slavery. It rejects as included in the Ninth Amendment any right to personal privacy.

Alito’s originalism is consistent only with the intent of those founding fathers who wanted to preserve slavery, not with the intent of those who sought to abolish it.

He would have us maintain the deal that was made with the devil — the compromise that united the slaveholding states with the free states. Alito fails to recognize that our nation more than a century ago broke that accursed deal and renounced the evil of slavery. He fails to recognize that our nation has since moved forward under the Bill of Rights to recognize freedom for all people. Heaven help us if his fellow justices agree.

Amelia Craig Cramer is the former president of the State Bar of Arizona and former Chief Deputy Pima County Attorney.

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