Earlier this month, a draft majority opinion by U.S. Supreme Court Associate Justice Samuel Alito was leaked to the public indicating the court was poised to overturn its landmark 1973 Roe v. Wade decision, a move that would allow individual states to outlaw abortion. Several states have so-called “trigger laws” in place to ban abortions the moment the high court issues such a ruling, and several other states are expected to follow suit if a federal guarantee of abortion rights is rescinded.
While cheered by social conservatives, the draft opinion has caused panic in other sectors, and not only because it would scuttle a nearly 50-year nationwide right to abortion. Many worry the reasoning used by Alito could be applied to overturn other rights the Supreme Court has affirmed as constitutionally protected.
Many of those rights arise from a fundamental principle the court set forth in Roe v. Wade and multiple subsequent decisions: that Americans have a right to privacy that is implied but not stated in the U.S. Constitution. Alito’s draft ruling attacks that reasoning.
“If Alito is saying that Americans don’t have an inherent right to privacy, then it opens the door to every bedroom in the country,” Rebecca Robb, a Boulder, Colorado, beauty shop worker, told VOA.
“I’m concerned that our right to contraception will be threatened,” she said, “and that marriage equality will be next. I’m scared LGTBQ+ rights will be stripped, that marriage and segregation laws for people of color will be revisited, and that immigrants will be treated unfairly by the courts.”
While many Americans share Robb’s fears, there are others who believe those fears are exaggerated or misguided. They point to Alito’s own words in the leaked draft, where he wrote, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
“It’s just another example of liberals using fear to create doubt and try to get what they want,” said Cathy Pridgen, a grandmother in Rocky Mount, North Carolina. “They’re trying to use scare tactics to protect abortion, but it won’t work.”
Precedent and a domino effect
The right to privacy as a general concept has served as the underpinning for a multitude of specific rights many Americans have come to take for granted in modern-day life.
“I’m afraid that any right tied to a right to privacy could be taken away if Roe is overturned,” Morgan Jameson, an English-Spanish language interpreter in Portland, Oregon, told VOA. “Gay marriage, interracial marriage — the Supreme Court works on precedent, so every decision is built from a previous one.”
In 1973, for example, when deciding Roe v. Wade, the court explained the right to privacy was acknowledged in previous cases, such as Griswold v. Connecticut (1965). Griswold used that right to determine the Constitution protects the liberty of married couples to buy and use contraceptives without government interference.
Jameson and others worry that, if Roe is overturned, their right to contraceptives could also be in danger, as could a number of other rights.
Sarah Warbelow, legal director for the Human Rights Campaign, a Washington-based LGBTQ advocacy group, said that is a concern Americans need to take seriously.
“The 14th Amendment has been interpreted over the years to protect fundamental rights — known as substantive due process rights,” she said. “The idea is that these rights are so entrenched in American society, it would be unreasonable for laws to be written that would take them away.”
Privacy, Warbelow said, is one of those rights.
“In the past the judicial system would have protected these rights, but that’s not the case in this draft,” she explained. “If one is overturned, the whole idea of due process rights becomes less certain.”
Warbelow said it is important to acknowledge Alito’s draft explicitly distinguishes between the right to an abortion and other rights, which she said could be reason for hope. Still, she believes civil rights activists and concerned citizens must remain on guard.
“I do think we have to take the threat seriously that other rights — rights to contraception or to intimate relationships among same-sex couples — could also be challenged. If you knock down one domino, many could fall."
'What will be the next case?'
Tulane University constitutional law professor Stephen Griffin said a domino effect is common in jurisprudence, but not in the direction progressives currently fear.
“It’s something constitutional law professors like to debate: What will be the next case?” he said. “But the dominos typically fall in the direction of the courts giving more rights. They don’t usually like to strip rights away.”
Many experts say the right to contraception will be the next to be challenged should Roe v. Wade be overturned.
“If abortion is banned, some forms of contraception could probably be made illegal by states without even going through the judicial system,” Griffin explained. “Things like the ‘morning-after pill’ can just be reclassified as an abortifacient instead of as a contraceptive. If the life of the fetus is protected from [the point of] fertilization, then those kinds of pills could be considered abortion and would be banned.”
Same-sex marriage, which the Supreme Court legalized nationwide in 2015, could also be challenged, according to Louisiana State University law professor John Baker.
“Without Roe and Planned Parenthood v. Casey (1992), the Supreme Court’s 5-4 decision in Obergefell v. Hodges (2015), which created a right to ‘same-sex marriage,’ would never have occurred,” he said.
Similarly, legal scholars say the Supreme Court’s 2003 decision that states may not criminalize intimate relationships between people of the same sex could also be revisited based on Alito’s draft opinion.
Emboldened response
“I think it will embolden state lawmakers to see how far to the right they can go on issues of abortion, contraception, intimacy and more,” said HRC’s Warbelow.
Thomas Jipping believes the worries are overblown. He is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies, which is part of the Institute for Constitutional Government at the conservative-leaning Heritage Foundation.
“In my opinion, no lawyer can read Alito’s draft and reasonably claim he wants to overturn other rights,” Jipping told VOA. “He doesn’t just explicitly write that his decision should have no effect whatsoever on any other rights — he wrote it twice. He couldn’t have been clearer.”
Robb, the Colorado beauty shop operator, said she would not take the court at its word.
“It’s just lip service and I don’t trust it,” Robb said. “Justices [Neil] Gorsuch and [Brett] Kavanaugh both said in their Supreme Court confirmation hearings that they respected Roe as precedent and the law of the land, but now it appears they’re voting to overturn it. Why should I trust the court’s word?”
Jipping believes liberals are attempting to connect a reversal of Roe with a possible overturning of additional rights in order to damage confidence in the Supreme Court and to mobilize Democrats in advance of this year’s midterm elections.
Democrats deny that assertion. Either way, voters may still be energized.
Lizzy Shephard is a Democratic voter in New Orleans, Louisiana, who sees the Supreme Court’s ideological leanings as dangerous and damaging for the most vulnerable in society. But she also sees a backlash brewing.
“I believe so passionately that bodily autonomy is a right,” said Shephard, who runs a local nonprofit organization. “Even if the Supreme Court takes that away for a while, I think it will strengthen our community to react so powerfully, one day this won’t even be a debate we have anymore.”
