Fears grow over other rights after abortion opinion

Gay sex and same-sex marriage could be under threat from Supreme Court, activists warn

With the Supreme Court poised to roll back half a century of abortion rights, activists fear conservatives will set their sights on other constitutional freedoms, starting with same-sex unions.

Also under threat could be gay sex or access to contraception, while future rulings could impact new areas such as transgender rights, legal experts say.

“The results of this case, if this opinion is actually the final opinion, will unravel constitutional rights that generations of Americans have taken for granted,” said Professor Katherine Franke of Columbia University’s Centre for Gender and Sexuality Law. “Its limits are hard to anticipate,” she added.

The Supreme Court’s draft ruling would overturn the 1973 Roe vs Wade decision that enshrined abortion rights across the country if confirmed by the court, which has until the end of June to decide.

Fears that other rights could next be in the cross hairs of the court’s conservative majority stem from Justice Samuel Alito’s draft opinion, in which he argued that the right to abortion was not protected by the constitution.

“We’re definitely worried,” said Trevon Mayers, senior director at New York-based LGBT advocacy group The Centre.

“Systems of power, including our courts and elected officials, need to focus on ensuring all people have access to the healthcare that they need, rather than the opposite,” Mayers added.

Alito wrote that in order for rights to be judicially protected, they had to be “deeply rooted in this nation’s history and tradition”, which he argued abortion was not.

The 14th amendment does not mention specific rights but has been widely referenced by courts over the years in granting certain fundamental rights, such as contraception in the 1960s and in 2015 when the-then liberal leaning Supreme Court legalised same-sex marriage.

“If anything like Alito’s opinion turns out to be the final opinion of the court, it does open the door for people who want to attack samesex marriage or gay sex in new cases,” said Arthur Leonard, an expert on equality law at New York Law School.

Alito, 72, stressed that he was talking about “the constitutional right to abortion and no other right”, but that did not reassure legal experts like Leonard.

“I don’t believe him,” said Leonard, adding there would be a “temptation” among the conservative justices to use their 6-3 majority to undo rights that have long vexed the religious right in America. Leonard said that if Alito applied his opinion elsewhere, it was “going to endanger a lot of potential new areas” such as transgender rights.

Around half of US states have laws prohibiting gay marriage. They could be triggered again if the Supreme Court’s legalisation of such unions was repealed. A handful still have laws prohibiting sex between same-sex partners.

Leonard said he thought the Supreme Court, which turned firmly conservative after the appointment of three members by ex-president Donald Trump, would not rule on gay sex.

“Public opinion has changed so sharply on that issue,” Leonard notes. “There’s a strong majority now in public opinion polls that say just keep their hands off what consenting adults do in private.

Republicans have yet to comment publicly on whether they would welcome the Supreme Court looking at gay marriage, but Democrats have indicated that threats to other rights will be a key angle of attack for them.

There’s a strong majority now … that say just keep their hands off what consenting adults do in private

ARTHUR LEONARD, NEW YORK LAW SCHOOL