Rights may be at risk after US Supreme Court abortion move
Gay marriage, emergency contraception 'lowhanging fruit'
Washington – US Supreme Court justice Samuel Alito’s draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts.
The draft ruling, disclosed in a leak, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v. Wade ruling that legalised the procedure nationwide.
The draft’s legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights Americans take for granted in their personal lives, said University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion.
“The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognised by the Supreme Court,” Sepper said.
The Roe decision, one of the court’s most important and contentious rulings of the 20th century, recognised that the right to personal privacy under the US constitution protects a woman’s ability to terminate her pregnancy.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only “deepened division” in society.
Abortion is among a number of fundamental rights the court over many decades recognised at least in part as “substantive” due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015.
Though these rights are not explicitly mentioned in the constitution, they are linked to personal privacy, autonomy, dignity and equality.
“This was considered social progress – we were changing as a society and different things became important and became part of what one cherished,” said Carol Sanger, an expert in reproductive rights at Columbia Law School.
Other legal scholars doubt there is a willingness on the court or in legislatures to eliminate other rights.
“On interracial marriage, contraception and same-sex marriage, for one reason or another there is no likelihood the court is going to revisit those decisions,” Northwestern University law professor John McGinnis said.
George Mason University constitutional law professor Ilya Somin said Alito’s ruling could make it unlikely the court would recognise due process protections in new areas such as transgender rights.
“But on the whole its effect on due process rights is likely to be minor.”