Little doubt remains as to what the Supreme Court plans to do with Roe v. Wade. But uncertainty abounds over the ripple effect as the court nears a final opinion that is expected to overturn the landmark 1973 case that created abortion rights across the country.
A leaked first draft of the majority opinion in the case, authenticated Tuesday by the Supreme Court, suggests that most justices are about to rule Roe out. The draft’s provocative rhetoric is also raising concerns that LGBTQ advances and other privacy-based issues could be vulnerable in a new hostile political environment.
“This is about much more than abortion,” President Joe Biden warned Wednesday, saying 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 has ever existed in recent American history,” Biden said.
Court opinions can change in big and small ways throughout the drafting process. So while the final verdict in the abortion case seems almost certain, the written justification, and its implications, may still be a hotly debated topic within the private chambers of the court.
The potentially sweeping impact of the draft could be tempered by the other justices, or it could emerge largely unchanged, with what advocates and Biden say could bring even more dire 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 embedded in the history and traditions of the nation. And he says that abortion does not meet that standard.
Biden and others are sounding the alarm that the same logic could be used to rule out other protections.
The president said he believed conservative justices on the court today, such as failed Supreme Court nominee Robert Bork in 1987, would not agree with the court’s ruling in Griswold v. Connecticut, which said there is a right to privacy that prohibits states from interfering with married couples. ‘ right to buy and use contraceptives.
Cases like Lawrence v. Texas, which struck down sodomy laws that criminalized same-sex intimacy, and Obergefell v. Hodges, who legalized same-sex marriage, rely, at least in part, on that same right to privacy.
Alito, in the draft opinion, explicitly states that the court only focuses on abortion rights, not on those other issues.
“We emphasize that our decision refers to the constitutional right to abortion and no other right,” the draft states. “Nothing in this opinion should be understood as calling into question non-abortion precedents.”
Obergefell differs from Roe in that hundreds of thousands of same-sex couples have relied on him to marry and create legal ties, such as shared property, inheritance rights and “set expectations about the future,” said Teresa Collett, a professor at the University . from St. Thomas Law School and director of its Prolife Center.
Courts are often reluctant to undo that kind of precedent. It is contrasted with abortion, which is often “a response to unplanned circumstances,” Collett said.
Obergefell also relies on the Constitution’s Equal Protection Clause, as well as the right to privacy.
The current Supreme Court abortion case refers specifically to a Mississippi law that prohibits abortion after 15 weeks, before the “feasibility” standard established in the 1992 case Planned Parenthood v. Casey, who in turn overcame Roe’s initial trimester framework to regulate abortion.
In arguments in December, all six conservative justices signaled they would uphold the Mississippi law, and five asked questions suggesting they supported overturning abortion rights 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, essentially overturning the court’s ruling in Casey, while upholding abortion rights in Roe.
So far, the court has allowed states to regulate but not prohibit abortion before the point of viability, around 24 weeks. The three liberal justices on the court seemed sure to disagree.
Still, Alito’s overall language and tone could encourage more challenge, said Jason Pierceson, a professor of political science at the University of Illinois, Springfield. “If the right to privacy is deconstructed or emptied or downplayed, then those particular cases carry less weight,” Pierceson said.
A challenge to same-sex marriage could be brought before the high court on religious freedom grounds, for example, by someone arguing that their religious faith prevents them from recognizing same-sex marriage. So far, cases like that have been mostly about exceptions to anti-discrimination laws, Pierceson said, “but one could potentially see an extension of the argument to the fact that maybe same-sex marriage laws are unconstitutional.” First of all”.
LGBTQ rights have made rapid progress over the past decade, and the general public has become much more supportive. But especially over the past year there has been a wave of bills in state legislatures targeting sports and health care for transgender youth, as well as addressing LGBTQ issues in certain classrooms. Supporters of those bills generally argue that they are necessary to protect children and the rights of parents.
In that context, the draft opinion, if finalized, could “send a flare” to conservative activists, said Sharon McGowan, chief legal officer at Lambda Legal.
“Overruling Roe will be very dangerous because of the signal it will send to the lower courts to ignore all the other precedents that are out there,” he said.
“It’s starting with abortion. It’s not going to end abortion,” said Mini Timmaraju, president of NARAL Pro-Choice America. “So everyone needs to be very vigilant.”
Critics could also take a page from the anti-abortion playbook, which involved multiple measures over decades that approached the problem from different angles, imposed limits rather than sweeping bans, and employed unusual strategies like the civil enforcement mechanism that has essentially already allowed Texas to ban abortion, said Alison Gash, a professor at the University of Oregon.
“It opens the door to all kinds of things that I think we’re probably going to see now that we have a court that seems willing to support that kind of creativity,” he said. “It’s all speculation, but it seems perfectly plausible for us to see Republican experimentation on a bunch of policies that could be affected by this.”
Donna Lieberman, executive director of the New York Civil Liberties Union, said that “what is expressed loud and clear in the draft” is that the agenda “is not just to get rid of abortion but to ban contraception, to remove all the important advances that we have done on LGBTQ rights, on the rights of trans children and also on racial equality.”
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