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As Americans reel from what appears to be the impending dismantling of abortion rights, many fear other freedoms, like gay and interracial marriage, may also be in jeopardy.
The concerns stem from a draft Supreme Court opinion leaked on Monday, May 2. That opinion, written by Justice Samuel Alito, signaled the Court’s likely decision to overturn Roe v Wade. But beyond that, the language of the opinion opens the door for states to take away other universal right the Court has granted.
When asked about the draft, President Biden called it “a radical decision”. The President says his concerns stem from the decision itself as well as “the rationale used”.
Biden voiced concerns that the decision could leave the door open for states to challenge other Supreme Court decisions, including rulings on same-sex and interracial relationships.
In the draft opinion, Justice Alito calls the Court’s 1973 decision to declare abortion a constitutional right an “exercise of raw judicial power”.
“At the time of Roe, 30 States still prohibited abortion at all stages,” Alito writes.
“In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire nation,” Alito amended. “[Roe] effectively struck down abortion laws in every single State.”
This language gives power to the idea that states should individually decide the rights of its citizens. It’s a potential precedent that could set the nation’s social progress back generations.
The Supreme Court’s reasoning for ending abortion rights could impact other American freedoms
The power of Supreme Court cases extend beyond a decision in a single case. There is a profound and lasting impact in the justices’ opinions that outline the rationale for their decisions.
It seems a majority of the Court, including Alito, adhere to a belief in “constitutional originalism”.
They interpret the Constitution based upon how they believe the framers intended it nearly 250 years ago.
For originalists, there is little room for the constitution to change and evolve along with the country. And because no mention of abortion exists in the Constitution, originalists do not consider it a guaranteed right.
“The Constitution makes no reference to abortion,” Alito writes. “No such right is implicitly protected by any constitutional provision.”
Alito says that “the Due Process Clause and the Fourteenth Amendment” do not guarantee a constitutional right to an abortion.
“Until the latter part of the 20th century, such a right was entirely unknown in American law,” he writes. “Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
Therefore, he argues on behalf of the majority, the Court should “allow each State to regulate abortion as its citizens wish”.
Many fear this opinion will lead to a further unraveling of legal rights for women, communities of color and the LGBTQ+ community.
Fears mount that the freedom for gay Americans could be at risk
“I’m telling you now how this is going to go down,” author Brynne Tannehill wrote on Twitter. Tannehill asserts that, once Roe falls, Texas will release an option that it does not need to abide by Obergefell either.
It’s a fear many across the country are echoing.
“Obergefell” is a reference to the 2015 landmark decision in “Obergefell v. Hodges”. That Supreme Court case legalized gay marriage nationwide.
Even though Alito states in the majority opinion that “abortion is fundamentally different” from issues of marriage, his opinion in Obergefell leaves reason for concern.
In 2015, Alito penned a dissenting opinion signed by justices Thomas and Scalia.
“The Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are,” Alito wrote in 2015. “And it is beyond dispute that the right to same-sex marriage is not among those rights.”
Alito argued then that “The Constitution says nothing about a right to same-sex marriage”.
He concluded that neither the Due Process Clause or the Fourteenth Amendment protect same-sex marriage as a right.
“The Constitution leaves that question to be decided by the people of each State,” Alito wrote.
Same rationale for ending Roe once used to try and uphold laws criminalizing gay sex
In 2003, conservatives on the Court used similar logic in dissenting against the decision to declare laws outlawing gay sex as unconstitutional.
Justice Scalia wrote in his dissent that “criminal prohibitions of homosexual sodomy” are not “a fundamental right under the Due Process Clause”.
Scalia later asserts that gay men and women don’t have a right to have sex without the threat of persecution. He reasoned it was not an inherent right because many states had long classified it as a crime.
“Until 1961, all 50 States outlawed sodomy,” Scalia quoted from a previous case opinion. “To claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
Concerns also grow about how the end of Roe could affect the right to interracial marriage
Throughout history, Justices have used this line of originalist thinking to limit rights and uphold oppressive practices.
In 1967, Commonwealth of Virginia lawyers used originalism to urge the Court to uphold a ban on interracial marriages. The Supreme Court unanimously decided in the landmark Loving v. Virginia case that those bans we unconstitutional.
However, lawyers in the case used many of the same argument made against abortion rights or gay marriage today.
According to Court documents the legal team representing the Commonwealth claimed “the Framers did not intend the Fourteenth Amendment to make state miscegenation laws unconstitutional.”
With an ongoing assault on LGBTQ individuals nationwide, as well as disturbing comments from elected leaders recently about interracial marriage, the precedent set by this decision is deeply unsettling.
The precedent set by the Court’s written opinion will alter life for Americans for generations to come
If submitted as the final majority opinion, Alito’ words could have long-lasting, disruptive effects.
Under this opinion, any state can now claim they need not abide by the rulings in Obergefell, Lawrence or Loving.
Roe v. Wade was monumental, both in its expansion of the right to abortion, and in its rationale for doing so.
It built on the precedent set in Brown v. Board and Loving v. Virginia, and it set precedent for future cases.
As it falls, so too does that precedent. What’s left in its place may cut away at the freedoms Americans enjoy for generations to come.