The US Supreme Court’s decision erasing the constitutional right to abortion provides a roadmap to end other freedoms involving marriage, sexuality and birth control, its three liberal members said on Friday, while conservative Justice Clarence Thomas urged the court to take just that path.
Friday’s 5-4 ruling, authored by conservative Justice Samuel Alito, overturned the 1973 Roe v. Wade decision that legalized abortion nationwide.
These precedents safeguarded an array of personal freedoms including contraception in a 1965 decision, interracial marriage in 1967, same-sex intimacy in 2003 and gay marriage in 2015.
We “cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the liberal justices wrote.
They advised the public to be skeptical of the court majority’s assertion that the ruling should not be read to cast doubt on other precedents “that do not concern abortion.”
“Think of someone telling you that the Jenga tower simply will not collapse,” the dissenting justices wrote, referring to a game involving precariously stacked wooden blocks.
Indeed, Thomas called on the court to toss those substantive due process precedents for good.
In future cases, Thomas said, “we should reconsider all of this Court’s substantive due process precedents,” specifically mentioning the rulings protecting the rights to contraception, same-sex intimacy and gay marriage.
President Joe Biden told Americans to brace for further threats to established rights from this court’s conservatives.
“I’ve warned about how this decision risks the broader right to privacy for everyone,” Biden said. “… The right to make the best decisions for your health. The right to use birth control, a married couple in the privacy of their bedroom.”
Though substantive due process rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. The Roe ruling recognized that a right to personal privacy under the Constitution protects a woman’s ability to terminate her pregnancy.
Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to elected legislators.
Friday’s ruling came in a case involving a Mississippi law that banned abortions after 15 weeks of pregnancy.
In a legal filing supporting Mississippi’s defense of its ban, the anti-abortion group Texas Right to Life had urged the justices to write an opinion that leaves decisions on same-sex marriage and intimacy “hanging by a thread.” They are, the group said, “as lawless as Roe.”
‘POTENTIAL LIFE’
Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called “potential life.”
Jennifer Mascott, a professor at George Mason University’s Antonin Scalia Law School in Virginia, said the ruling should be viewed as limited to abortion and “not a signal that the court is going to uproot these other issues.”
But the threat to other rights comes from its legal reasoning used by the court’s majority to terminate the abortion right, according to other legal scholars.
Alito wrote that the right to abortion is not valid under the 14th Amendment because such rights must be “deeply rooted” in U.S. history and tradition and essential to the nation’s “scheme of ordered liberty.” Most states in the 19th century had criminalized abortion, he said.
“All Alito can say is that abortion is different,” said University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion. “But if the test of whether a right is protected is if it is deeply rooted in our nation’s history and tradition, then a number of other fundamental rights can be challenged.”
That critique is echoed in the dissenting opinion, which notes that American law did not until much later protect other freedoms including whom to marry, to use birth control or to be protected from sterilization.
“So if the majority is right in its legal analysis, all those decisions were wrong,” the liberal justices said.
Sepper said that the most likely next targets for restrictions in certain states would be emergency contraception, which many conservatives view as akin to abortion, and same-sex marriage.
Friday’s ruling resembles Alito’s dissent in the court’s same-sex marriage decision in which he said the 14th Amendment’s due process promise protects only rights deeply rooted in America’s history and tradition.
“And it is beyond dispute that the right to same-sex marriage is not among those rights,” Alito wrote in that 2015 dissent.
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