Some Implications of Justice Alito’s Leaked Majority Opinion on Dobbs

Today I’ve been digging into the legal mechanics of the recently leaked draft majority opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization to write a short paragraph explaining the opinion for a piece about an adjacent topic. The implications of this ruling are interesting.

As has been widely reported, Alito’s specific gripe is about what he perceives to be the overexertion of the “fundamental rights” status to rights other than those enumerated in the constitution. This opinion runs against the U.S. Supreme Court trend of holding constitutionally unenumerated rights — which, according to the Ninth Amendment, is open-ended — as federally “fundamental” and thereby unable to be abridged by the states due to the 14th Amendment.

I’m no legal expert, and I’m trying to understand this myself. If I understand this correctly, though, This would seem to imply that this majority opinion could potentially open the door for state legislatures to constrain anything not explicitly enumerated by the constitution as a fundamental right, including issues that the U.S. Supreme Court has previously decided.

To clarify this, here are just a few such unenumerated rights that the U.S. Supreme Court has determined to be fundamental in the past:

• The right to interstate travel (Crandall v. Nevada & Shapiro v. Thompson)
• The right of parents to control the upbringing of their children (Troxel v. Granville)
• The right to marital privacy (Griswold v. Connecticut)
• The right to privacy in sexual matters between consenting adults (Lawrence v. Texas)
• The right to marriage (Loving v. Virginia & Obergefell v. Hodges)
• The right of self-defense (District of Columbia v. Heller)

So, if my read of this is correct, then much of what Americans have in recent decades come to understand as private and personal liberty for themselves and their families is potentially open to scrutiny. It’s not difficult to imagine where or how challenges to these rights might arise. If the final opinion in Dobbs ends up not deviating much from the recently leaked draft opinion, it will be interesting to see if and when they do.