Civil and Human Rights

Abortion draft opinion fallout: Could rights to same-sex marriage, contraception be next?

WASHINGTON – Whenever the Supreme Court hands down its final ruling in this year’s blockbuster challenge to Roe v. Wade, the bulk of the decision will be focused on interpreting what the Constitution says – or doesn’t say – about abortion.

But lurking just below the surface of that already fraught debate are questions about other rights experts say could be implicated if the high court overturns its landmark Roe decision, including access to contraception and the legality of same-sex marriage.

The potential for impact beyond abortion flashed to the forefront on Tuesday after a draft opinion overturning Roe was leaked and published by Politico. Reacting to the draft, which was later authenticated by the high court, President Joe Biden said that a “whole range of rights” beyond abortion are in question if the justices overturn Roe v. Wade.

“It’s a fundamental shift in American jurisprudence,” Biden told reporters.

That’s because the legal principles that the Supreme Court said in 1973 are the basis for the constitutional right to abortion are the same ones it relied on to recognize other rights not explicitly noted in the Constitution but understood by many to exist.

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“There are huge stakes on the question of the right to abortion but that’s only part of it,” David Gans with the liberal Constitutional Accountability Center, told USA TODAY in December. “There’s a giant question about does the 14th Amendment protect basic, fundamental rights even though they’re not explicitly laid out in the Bill of Rights or in another part of the Constitution.”

The Constitution doesn’t explicitly guarantee a right to abortion, but a 7-2 majority in Roe held that the 14th Amendment’s protection of “liberty” includes the right to terminate a pregnancy. Several of the justices in that case drew on another landmark opinion decided eight years earlier that legalized contraception for married couples.

In Griswold v. Connecticut, the Supreme Court invalidated a law that forbid contraception, finding the Bill of Rights created “zones of privacy” for married couples.

Texas Right to Life also encouraged the court in a brief last year to reconsider same-sex marriage when it looks at abortion. The group’s brief targeted two watershed Supreme Court decisions, among others, the 2015 ruling in Obergefell v. Hodges that legalized same-sex marriage nationally and the 2003 ruling in Lawrence v. Texas that invalidated state prohibitions on sodomy.

“This is not to say that the court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe,” the group argued. “But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread.”

The draft opinion published this week, written by conservative Associate Justice Samuel Alito, noted that “the Constitution makes no reference to abortion” and that “no such right is implicitly protected by any constitutional provision.” The 14th Amendment has been the justification for “some rights that are not mentioned in the Constitution,” he wrote, but such implied rights must be “deeply rooted” in the nation’s history.

The potential for a legal fight over contraception in a post-Roe world may be particularly high, experts say. That’s because contraception was at the heart of the 2014 Hobby Lobby case in which the court ruled companies with religious objections cannot be forced to offer insurance for certain birth control methods they equate with abortion.

A majority of the justices signaled during nearly two hours of argument last year that they are prepared to shift the way the court has viewed abortion for more than a generation, potentially not only upholding Mississippi’s ban on the procedure after 15 weeks of pregnancy but perhaps overturning the Roe v. Wade decision itself.

Mississippi says the high court could overturn Roe without relitigating other rights.

“These are cases that draw clear rules: You can’t ban contraception, you can’t ban intimate romantic relationships between consenting adults,” Scott Stewart, Mississippi’s solicitor general, told the court about the potential fallout of abandoning Roe. “None of them involve the purposeful termination of a human life.”

Alito echoed a similar sentiment in his draft opinion.

“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, but abortion is fundamentally different,” Alito wrote, “because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”

During the court’s heated arguments last year, Associate Justice Sonia Sotomayor asked about the fate of those other rights if Roe is overturned. A lot of accepted constitutional rights, she said, are not written into the founding document.

Would those rights also be in jeopardy in some future case, she asked.

“We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry,” said Sotomayor, who was nominated to the court by President Barack Obama in 2009. “I fear none of those things are written in the Constitution.”

Stewart said those decisions were different in part because they set clear boundaries – a state can’t ban contraception for adults or can’t prohibit same-sex marriages – and that those rules have proven workable. And marriage broadly – if not same-sex marriage specifically – is deeply rooted in the nation’s tradition and history, he said.

Abortion, Stewart told the justices, has by contrast vexed courts for decades.

“Do you think that no state is going to think otherwise, that no people in the population aren’t going to challenge those cases in court?” Sotomayor asked.

“Your honor,” Stewart responded, “we’ll always have a diversity of views.”

Sotomayor shot back: “That’s the point.”

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