This Covid Mandates Case Would Let Alito Prove The Left Doesn’t Care About Bodily Autonomy
By Scott J. StreetAfter 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.
Then Alito did something brilliant. He recognized that Timbs and McDonald involved rights that the Bill of Rights explicitly mentions. But he acknowledged that “it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.”
That was a masterstroke in legal reasoning. After all, that is the liberal position. Embracing it gave Alito the intellectual high ground. And he spent the rest of the Dobbs opinion explaining, in meticulous detail, why the right to abort a child was not one of the privacies of life protected by the common law, and therefore why such a right was not part of the “liberty” interest protected by the substantive due process doctrine.
As often happens, the court’s three liberal justices disparaged Alito. They accused the majority of eliminating the constitutional right to privacy. They wrote eloquently about the right to bodily integrity. They said that, in America, “we do not believe that a government controlling all private choices is compatible with a free people.”
Liberal politicians joined the chorus. The Obamas said that “the freedom enshrined in the Fourteenth Amendment of the Constitution requires all of us to enjoy a sphere of our lives that isn’t subject to meddling from the state. …” They said Dobbs would “relegate the most intensely personal decision someone can make to the whims of politicians and ideologues.”
Fast-forward to Carvalho. It is a bodily integrity case. It involves the constitutional right to privacy. It is built on the reasoning of cases like Cruzan, Sell, Griswold v. Connecticut, and other privacy decisions. Liberals should support it, right?
They don’t. At least, those liberals who call themselves “progressives” do not support it. They view the right to privacy through a political lens. They support medical mandates like Covid-19 “vaccine” policies just as they supported eugenics. They 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. As one Democrat, Joe Klein, said when criticizing the leftist overreaction to Justice Alito’s opinion in the Louisiana voting rights case, so-called progressives “are [the] true reactionaries. …”
Of course, as Justice Clarence Thomas recently pointed out, such hypocrisy is part and parcel of the “progressive” movement. That makes the Supreme Court’s action in Carvalho — it could decide to take the case as early as next week — even more important. From judges signing off on questionable eavesdropping requests to judges trying to block President Trump from the ballot, not to mention the hysteria over the Jan. 6 protests, the judiciary has become increasingly politicized in recent years. That is a mistake. Leave leftism to the political arena. The judiciary should be held to a higher standard.
In that respect, Carvalho arrives at the perfect time. It is consistent with Dobbs. In fact, Dobbs was our model when we decided to take the case to the 9th Circuit Court of Appeals. We used opinions from liberal 9th Circuit judges like Stephen Reinhardt to frame the argument. We urged the 9th Circuit to put the law above politics.
They couldn’t do it. In an en banc opinion authored by Trump appointee Mark Bennett — one of the many poor judicial appointments from Trump’s first term, something the president seems determined to correct — the 9th Circuit refused to tackle those constitutional questions. It rubber-stamped the district’s reasoning. It wants to move on.
That is where Justice Alito comes in. As Federalist Editor-In-Chief Mollie Hemingway explains in her new book, he has become one of the most important justices in American history. And he seems to recognize it, as demonstrated by his calling out the leftist temper tantrum that Justice Ketanji Brown Jackson threw this week.
He still has some doubters, though. With Carvalho, he can prove them wrong. He can show that Dobbs wasn’t a political decision or a blow to privacy rights. It simply jettisoned a flawed legal doctrine, a doctrine that was not grounded in stare decisis but in politics. In fact, in Dobbs, Alito did more to promote the substantive due process doctrine than his liberal colleagues have ever done. He removed it from the political process and revived the clear legal rule that should govern these cases.
He can continue that in Carvalho. We should expect no less from America’s greatest living judge.
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