EXPERTS: COURT’S OPINION COULD SIGNAL WIDER SHIFT
Biden, Newsom express wariness about other rights based on privacy
Little doubt remains about what the Supreme Court plans to do with Roe v. Wade. But uncertainty abounds about ripple effects as the court nears a final opinion expected to overturn the landmark 1973 case that created a nationwide right to abortion.
A leaked first draft of the majority opinion in the case, authenticated Tuesday by the Supreme Court, suggests that a majority of justices are poised to toss out Roe. The draft’s language also is generating concern that LGBTQ advances and other matters based on a right to privacy could be vulnerable.
“This is about a lot more than abortion,” President Joe Biden said on Wednesday, warning the court’s draft opinion could jeopardize same-sex marriage, access to contraception and LGBTQ rights.
“What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that’s existed in recent American history,” Biden said.
Court opinions can change in ways big and small throughout the drafting process. So while the eventual ruling in the abortion case appears all but assured, the written rationale — and its implications — may still be a hotly debated subject inside the court’s chambers.
The draft’s potential impact could be tempered by the other justices, or it could emerge largely unchanged — with what Biden and some advocates say could bring additional consequences.
The draft opinion, written by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, argues that unenumerated constitutional rights —
those not explicitly mentioned in the document — must be “deeply rooted in the Nation’s history and traditions.” And it says abortion doesn’t meet that standard.
Biden and others are sounding alarms that the same logic could be used to toss out other protections.
“This Supreme Court is poised to roll back constitutionally protected rights and don’t think for a second — don’t think for a second — this is where they stop,” Gov. Gavin Newsom said at an appearance Wednesday at a Planned Parenthood office near downtown Los Angeles.
“They are coming after you,” he added. “You think for a second same-sex marriage is safe in the United States?” he asked. “If privacy is not constitutionally protected, this opens up panoply of issues.”
Newsom then railed against his own party, saying Democrats had been largely absent as rights were being eroded.
He alluded to recent battles across the country, including over a Texas law that bans abortions after a fetal heartbeat can be detected, possibly as early as six weeks, and a Florida law that forbids classroom discussion of sexual orientation and gender identity in kindergarten through third grade.
“Where is the Democratic Party?” he asked. “Why aren’t we standing up more firmly? More resolutely? Why aren’t we calling this out?”
The president said he believed the conservative justices on today’s court would, like failed Supreme Court nominee Robert Bork in 1987, disagree with the court’s ruling in Griswold v. Connecticut, which said that a right to privacy exists that bars states from interfering in married couples’ right to buy and use contraceptives.
Cases like Lawrence v. Texas, which struck down sodomy laws criminalizing same-sex intimacy, and Obergefell v. Hodges, which legalized gay marriage, are based, at least in part, on that same right to privacy.
The draft of the opinion describes abortion rights as not “deeply rooted” in the nation’s history and not explicitly protected by the Constitution.
Experts said if that reasoning becomes final, it would reflect a major victory for a conservative legal movement that has long criticized “judge-made law,” where they argue Congress or state legislatures should decide public policies instead of the Supreme Court.
Duke University School of Law professor Neil Siegel called the draft “extraordinary” because it goes beyond the reasoning the court needed to restrict abortion. Siegel said, if adopted, it could open potential challenges to legal rights including same-sex marriage, same-sex relationships, contraception, interracial marriage and protection against forced sterilization.
Alito, in the draft opinion, explicitly states that the court is only targeting the right to abortion, not those other matters.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” the draft states. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Obergefell is different from Roe in that hundreds of thousands of same-sex couples have relied on it to wed and created legal bonds, like shared property, inheritance rights and “settled expectations about the future,” said Teresa Collett, a professor at the University of St. Thomas School of Law and director of its Prolife Center.
Courts are usually loath to undo that kind of precedent. It stands in contrast to abortion, which is usually “a response to unplanned circumstances,” Collett said.
Obergefell, moreover, relies on the Constitution’s Equal Protection Clause as well as the right to privacy.
The current Supreme Court abortion case specifically concerns a Mississippi law that bans abortion after 15 weeks — before the “viability” standard set in the 1992 case Planned Parenthood v. Casey, which itself moved beyond Roe’s initial trimester framework for regulating abortion.
At arguments in December, all six conservative justices signaled they would uphold the Mississippi law, and five asked questions suggesting they supported overturning the right to abortion nationwide, leaving the issue up to individual states.
Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, in essence overturning the court’s ruling in Casey, while leaving in place the right to an abortion in Roe.
Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks. The court’s three liberal justices appeared certain to be in dissent.
Still, the language and tone of the draft overall could encourage more challenges, said Jason Pierceson, professor of political science at the University of Illinois, Springfield. “If the right to privacy is deconstructed or is hollowed out, or is minimized, then those cases in particular have less standing,” Pierceson said.
A challenge to same-sex marriage could come before the high court on religious liberty grounds, for example, such as someone arguing their religious faith prevents them from recognizing same-sex marriage. Cases along those lines have been mostly about exceptions to anti-discrimination laws so far, Pierceson said, “but one could see potentially a broadening of the argument to the fact that maybe same-sex marriage laws are unconstitutional in the first place.”