This Covid Mandates Case Would Let Alito Prove The Left Doesn’t Care About Bodily Autonomy: Leftists cherish the right to bodily autonomy so long as the person exercising it is a woman seeking to abort a child, not an adult who objects to putting an experimental medication in her body

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This Covid Mandates Case Would Let Alito Prove The Left Doesn’t Care About Bodily Autonomy:

Leftists cherish the right to bodily autonomy so long as the person exercising it is a woman seeking to abort a child, not an adult who objects to putting an experimental medication in her body.

After six years, plenty of people would like to move on from the Covid-19 pandemic. But with one of Tony Fauci’s top deputies under indictment for concealing emails about Covid’s origins, now seems like the perfect time to reflect on the many things that government got wrong during the pandemic, the human toll its overreactions took, and what courts can do to prevent them during the next emergency.

Those issues are at the heart of the petition we filed in Health Freedom Defense Fund v. Carvalho, which the Supreme Court will discuss at its May 14 conference. But Carvalho is not just about the rules that apply during a pandemic. It involves important questions about the scope of Americans’ right to bodily autonomy, the freedom to choose what they do with their bodies.

Carvalho involves people who used to work for the Los Angeles Unified School District. During the fall of 2021, the district ordered them to take the Covid-19 shot. They objected. They did not want to take an experimental shot that, by that point, had been proven not to prevent infection or the spread of the virus.

The district said it would fire them, so the plaintiffs sued. Joined by Health Freedom Defense Fund, they argued that, because the Covid shot did not prevent infection or transmission, it was not a “vaccine” but a medical treatment. It was no different than Advil or Tylenol or any other medicine that might (or might not) reduce the symptoms of illness. Given the limited (if any) benefits and the potential risks, the Carvalho plaintiffs decided not to put the shot into their bodies. They grounded their objection in the Constitution’s due process clause, alleging that the district’s policy violated their substantive due process rights.

Substantive due process is a controversial doctrine. Conservatives spent years attacking it. Justice Antonin Scalia called the doctrine an “oxymoron” and regularly dissented as the Supreme Court used it to create “new so-called fundamental rights, such as the right to structure family living arrangements … and the right to an abortion.” Indeed, after the court’s abortion decision in Planned Parenthood v. Casey, substantive due process became a pawn in the political battle between left and right, with conservatives refusing to acknowledge the doctrine’s legitimacy and liberals using it to expand constitutional protections for political minorities.

In truth, substantive due process has always been a part of constitutional law. Perhaps it was just poorly named. And the Supreme Court showed that when it tackled the politicized issue of assisted suicide during the 1990s.

In the first case it considered, Cruzan v. Missouri Department of Health, the court affirmed the Missouri Supreme Court’s denial of a petition to end Nancy Cruzan’s life after a terrible car accident. Despite the result, it echoed longstanding constitutional principles about bodily autonomy, including the Supreme Court’s own admonition, from 1891, that “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” And it made clear: “A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment.”

Cruzan established a clear test for bodily integrity-based due process cases: “[T]he question whether that constitutional right has been violated must be determined by balancing the liberty interest against relevant state interests.”

Cruzan was a watershed moment in constitutional litigation. Even Scalia recognized the potential validity of the substantive due process doctrine, writing that “no ‘substantive due process’ claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against state interference.” Like abortion, the common law outlawed suicide, though, so that made the result easy for him. But what about other invasions of bodily autonomy, like forced medication and compulsory vaccination?

We soon got some answers. For example, in Sell v. United States, the Supreme Court upheld a prisoner’s right to object to compulsory medical treatment, saying that, “as this Court’s cases make clear, involuntary medical treatment raises questions of clear constitutional importance.” It did not provide an answer but set forth a test to determine whether the government demonstrated a “need for that treatment sufficiently important to overcome the individual’s protected interest in refusing it. …” The court’s liberals led that decision, with Scalia left to grumble about procedural flaws in the case.

Despite these developments, abortion kept dominating the substantive due process doctrine, especially after Justice Sandra Day O’Connor retired in January 2006. O’Connor, after all, led the court’s controversial abortion decision in Planned Parenthood v. Casey. George W. Bush was in the middle of his second term. The replacement of O’Connor could change history.

Bush chose Samuel Alito.

We need to know that history to understand what Alito accomplished in Dobbs v. Jackson Women’s Health Organization, the 2022 case that overruled Casey and Roe v. Wade. Dobbs is one of the most controversial decisions in American history. It sparked protests, death threats, and the unprecedented leaking of a draft opinion.

It should not have been so controversial. Alito grounded the majority opinion in elite judicial reasoning, not rhetoric. And he used opinions from both liberal and conservative justices to make the most important points. For example, Alito embraced the substantive due process doctrine. But he framed it through an inherently conservative lens, asking “whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’”

In a shrewd move, though, he led his analysis with an opinion from liberal icon Ruth Bader Ginsburg, who relied on the test in an excessive fines case called Timbs v. Indiana. And he linked Ginsburg’s analysis from Timbs to his own analysis in McDonald v. City of Chicago, which found that the due process clause protects an individual right to keep and bear arms. --->READ MORE HERE

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