The Atlanta Journal-Constitution
If Roe falls, is same-sex marriage next?
Conflicting signals in draft opinion about its sweep.
WASHINGTON — When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade.
The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too.
The justices’ questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional. The disclosure May 2 of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made those questions urgent and concrete.
The opinion, by Justice Samuel Alito, provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
On the other hand, the logic of the opinion left plenty of room for debate.
It said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the draft opinion’s general reasoning, for contraception, gay intimacy and same-sex marriage, rights established by three Supreme Court decisions that were discussed at some length in the argument in December.
Alito’s draft opinion is 3 months old, and it is all but certain that later drafts have clarified and sharpened his arguments. But the reasoning in the draft has alarmed supporters of gay rights, who say they fear that the final opinion, if it resembles the draft, could imperil hardwon victories.
Alito, for his part, has made no secret of his hostility to Obergefell v. Hodges, the 2015 decision on samesex marriage. In 2020, when the court turned down an appeal from a county clerk who had been sued for refusing to issue marriage licenses to same-sex couples, he joined a statement written by Justice Clarence Thomas that called the decision at odds with the Constitution.
“In Obergefell v. Hodges,” the statement said, “the court read a right to samesex marriage into the 14th Amendment, even though that right is found nowhere in the text.”
That is the same argument the draft opinion makes about the right to abortion.
Alito’s efforts to distinguish the two questions, then, may strike some as halfhearted.
The primary distinction that Alito drew was that there was an important moral value at issue in Roe and in Planned Parenthood v. Casey, the 1992 decision that reaffirmed its central holding.
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception and marriage,” Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
Alito surveyed the precedents cited by Roe and Casey to justify their protection of abortion. They included ones on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of one’s children and the right not to be sterilized without consent.
He also cited two “post-casey decisions,” Obergefell and Lawrence v. Texas in 2003, which struck down a Texas law that made gay sex a crime.
In general, Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”
“None of these rights has any claim to being deeply rooted in history,” he added, a point that could be made about same-sex marriage, too.
The Biden administration, in its brief supporting the abortion providers challenging the Mississippi law, said that overruling Roe and Casey “would also threaten the court’s precedents holding that the due process clause protects other rights, including the rights to same-sex intimacy and marriage, to interracial marriage and to use contraception.”
“None of those practices is explicitly mentioned in the Constitution,” the brief said, “and most of them were widely prohibited when the 14th Amendment was adopted.”