These 3 Supreme Court decisions could be at risk after Roe v. Wade was overturned
The leak of a draft Supreme Court decision to end the nationwide right to abortion has sparked speculation — including by President Biden — that other landmark rulings could now be on shakier ground, including those that legalized same-sex marriage and birth control.
"This is about a lot more than abortion," said Biden, speaking to reporters on Wednesday. "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 American history — in recent American history."
In the draft, which was published by Politico on Monday, Justice Samuel Alito takes pains to say that the legal logic at the heart of the conservatives' decision to overturn Roe v. Wade would not apply to other cases.
"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. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," he wrote.
But Alito also repeatedly suggests that any right not explicitly outlined in the Constitution must be "deeply rooted" in American history and tradition in order to be recognized by the Supreme Court. "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None," he wrote.
The draft could still be changed. The official ruling is expected sometime this summer.
Should it stand, some legal experts say that this language may not be enough to keep such a ruling from being used to challenge other rights down the road.
"Certainly contraception involves the idea of a possible pregnancy. He really overstates his case, I think, in many places," said Carol Sanger, a professor of family and abortion law at Columbia University, in an interview with NPR.
Here are some of the other cases that are now in the spotlight:
Griswold v. Connecticut (1965)
Because the right to privacy is not directly outlined in the U.S. Constitution, it took years to develop the legal theory that has become central to these types of cases today. Griswold v. Connecticut, which first established the right to use birth control, was a key part of that process.
The Griswold case concerned a nearly century-old Connecticut law banning the use of all forms of contraception. The challenge, which focused on married couples, was brought by Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, after her arrest for opening a location in New Haven.
In a 7-2 vote, the justices ruled that marital privacy is in fact protected against state bans on contraceptives — and helped establish the idea that privacy is a constitutional right, even though the Constitution does not explicitly guarantee it.
"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship," wrote Justice William Douglas. "We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system."
Griswold has since become a major precedent, referenced later in opinions about abortion and same-sex marriage, all of which found that people have the right to be free from government intrusion when exercising fundamental rights.
Those subsequent cases have leaned on the Due Process Clause of the 14th Amendment, which says that state governments cannot deprive people of life, liberty or property without "due process of law."
In 2005, John Roberts, during his Supreme Court nomination hearing, said he agreed with the conclusions reached in Griswold and added, "It does not appear to me to be an area that is going to come before the court again."
By contrast, at her confirmation hearing in 2020, Amy Coney Barrett would not say whether she believed Griswold had been rightly or wrongly decided, because its conclusions "lie at the base" of other cases still being litigated, she said. But she added that Griswold was "very, very, very, very, very, very unlikely to go anywhere."
Lawrence v. Texas (2003)
One night in 1998, police were called to the home of John Lawrence, a gay man. Police entered his unlocked apartment, where an officer said he saw Lawrence having consensual sex with another man.
Under a Texas anti-sodomy law that banned two people of the same sex from having sex with each other, Lawrence and his partner, Tyron Garner, were arrested.
In a 6-3 vote, the Supreme Court voted to strike down the Texas law, overturning a previous decision from 1986 that had reached the opposite conclusion. The 14th Amendment's Due Process Clause was central to the overruling.
"The condemnation [of homosexual conduct] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives," wrote Justice Anthony Kennedy, who authored the majority opinion.
"These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law." The answer, the justices decided in Lawrence, was no.
Among those dissenting was Justice Clarence Thomas, who called the Texas law "uncommonly silly" but also said that he could find no "general right of privacy" in the Constitution.
Obergefell v. Hodges (2015)
Obergefell v. Hodges legalized same-sex marriage nationwide. In Ohio, Jim Obergefell had brought suit in order to be recognized as the surviving spouse of his deceased partner, John Arthur.
The justices voted 5-4 to declare same-sex marriage a constitutional right, citing both the Due Process Clause and the Equal Protection Clause of the 14th Amendment.
"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era," wrote Kennedy, who joined the court's four liberals.
The conservatives, led by Roberts, wrote that the court had taken the 14th Amendment too far. The liberals' interpretation of the Due Process Clause — essentially, that it guarantees certain basic rights that are otherwise unaddressed by the Constitution — had crossed a line into "converting personal preferences into constitutional mandates," Roberts wrote.
Just as Alito has called on the historical record on abortion in his draft opinion to overturn Roe v. Wade, Roberts wrote in 2015 that a historical basis for same-sex marriage did not exist.
"The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs," Roberts said.
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