The sky is not falling

Mainstream media outlets have seized on the illicit leak of a draft decision by Justice Alito that overturns Roe v Wade (1973)–a decision that hasn’t even been rendered yet–to claim that the sky is falling.

If Roe is overturned then every decision that flows from the reasoning inherent to Roe will also fall. What we’re talking about here is same sex marriage.

CNN would have you believe, however, that because privacy plays a part in the earlier decisions of the Court on interracial marriage (1967) and contraception (1965) that those two decisions now hang by a thread.

Is this true? It depends.

The notion of precedent means–and I’m simplifying this significantly–that in deciding cases American courts depend on prior court decisions as authorities to aid or guide them in applying the law to the facts.

If a case deals with the very same facts, or facts that are substantially similiar, it’s pretty straightforward. Believe it or not, those cases rarely go to court.

The lawyers involved have a clear sense of where the courts are on the issue and will likely resolve the issue outside of the courtroom.

If the facts are different then the there’s a chance that a court will decide differently. It’s a risk though, and an expensive one.

Judges and justices who lean toward traditional theories of the law tend to have a very high view of stare decisis, the legal doctrine that a matter decided should inform subsequent decisions of the court.

Understandably, judges who favor a more progressive approach to the law tend to be willing to find differences between the facts of a case at hand and those that have gone before, especially when it comes to the issues where society is believed to be evolving.

Additionally, they are also more apt to find novel ways (or legal theories) of supporting a decision that radically (rather than gradually) changes the law. That’s how you get legalized abortion through a right to privacy (Roe) and, say, ending segregation by an appeal to interstate commerce (Heart of Atlanta Motel and Katzenbach v. McClung, both 1964).

What’s happening here–as far as I can tell–is that the Alito decision is effectively pruning off one branch (privacy as a rationale for abortion access) from the trunk of privacy.

Alito distinguishes (i.e., says “hey this is different from the other cases”) Roe from other decisions rooted in concerns for individual privacy (and here what we’re really talking about is autonomy) because here we’re dealing with terminating what is arguably a human life.

In other words: abortion is different from contraception and from interracial marriage because it involves the taking of a life. There is, of course, no justification under the law for, say, “consensual murder” on the basis of protecting what two people do in the privacy of their own home.

You cannot–as far as I am aware–give legal consent to be killed except in the narrowest of circumstances and those all related to withdrawing life-saving measures rather than imposing life-ending ones.

The sky’s not falling and these other things we take for granted are not dominoes teetering just waiting for the stroke of Samuel Alito’s pen to send us cascading back into the dark ages.

This is true if for no other reason that it would be exceedingly difficult to find the right case for the court to consider in order to undo these prior decisions. In the case of interracial marriage you’d have to find a plaintiff who would file suit claiming some harm from interracial marriage, the same is true for contraception.

It’s not inconceivable, but there’s a reason its taken nearly 50 years for Roe to be seriously challenged. The current situation was unlikely and these other outcomes are even moreso.

Not to mention that a reversal of Roe simply leaves regulating abortion to the states. Here in Illinois, for example, this decision–if it becomes final–would mean absolutely nothing as it would for a large swath of the country. These nuances mean little to abortion advocates. For them, a world in which there are regulations on this violent is unforgivable.

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