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Pulling the Thread

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Jill at Feministe notes an interesting Townhall discussion of Alito’s invocation of Griswold at the hearings, which sees in Alito’s argument about the shifting rationales for the right to privacy a signal that Griswold does not mean Roe. Jill is right that this is important, and for people unfamiliar with the history it’s worth discussing what Alito is talking about.

As many of you know, Griswold–which struck down a Connecticut law banning the use of contraception–had a majority opinion by William O. Douglas, which located a right to privacy as an outgrowth of the structural logic of the Bill of Rights, which was overwhelmingly concerned with provides zones of individual protection against overweening state authority. The conservative justice John Marshall Harlan, while equally convinced that the statute was egregiously unconstitutional, located the individual’s protection in a substantive reading of the 14th Amendment’s due process clause. Roe v. Wade‘s notoriously brief legal analysis, while citing Griswold, held that the Texas statute was “violative of the Due Process Clause of the Fourteenth Amendment,” implying that it was applying Harlan’s, not Douglas’s, reasoning.

Robert Bork and many other conservatives have argued that Roe is wrong because Griswold was wrong. This presents the obvious problems that 1)Griswold was an easy case correctly decided, and 2)overturning it would be exceptionally unpopular, even more so than overturning Roe. Nobody who advocated it could get appointed to the Court, and rightly so. Which brings us to Plan B.

Before Griswold was a case called Poe v. Ullman, in which both Harlan and Douglas–in dissent–would write stronger opinions on behalf of the unconstitutionality of the contraception ban than they would later in Griswold. Harlan’s dissent was largely drafted by a young clerk named Charles Fried. As Reagan’s solicitor general, Fried argued in front of the Supreme Court that the Court could “pull the thread” of Roe without undoing the other privacy cases, based on the substantive due process logic. While Douglas’s emphasis on individual autonomy was more obviously related to the right at stake in Roe, Fried argued that Harlan’s S.D.P. right was located in the security of people in their homes, and as such did not apply to the abortion cases. Under Fried’s logic (which is quite plausible on its own terms), one can overrule Roe without overturning Griswold, or Eisenstadt (extending Griswold to unmarried heterosexual couples)or perhaps even Lawrence (extending the right to privacy to same-sex couples.)

And, of course, Alito and Fried worked together in the Reagan White House; Alito helped shape the Reagan administration’s anti-Roe strategy and was well aware of this argument. So it’s clear what’s going on here: Alito is signaling that his acceptance of Griswold doesn’t mean that he accepts Roe. People in the media who argue otherwise are being played for suckers, just as Alito and his supporters want.

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