Legal experts fear overturning Roe v. Wade puts other liberties at risk too
Story at a glance
Earlier this month, Politico published a draft opinion that stated the Supreme Court planned to overturn Roe v. Wade, the landmark ruling that abortion is a constitutional right.
While the decision is not final in the Dobbs v. Jackson Women’s Health case, the Supreme Court is expected to issue its ruling this summer.
In his draft opinion, Justice Samuel Alito argued that the right to an abortion should be revoked since the right was not explicitly given in the Constitution, an argument that worries many legal experts.
If the Supreme Court overturns Roe v. Wade this summer, which it is likely poised to do according to a leaked draft opinion, many legal experts worry that other liberties could be eradicated under the same grounds.
In a draft opinion leaked earlier this month, Justice Samuel Alito argues that the right to an abortion should be revoked since it is not explicitly given in the Constitution – an assertion that many legal experts fear could threaten other rights.
The Supreme Court is expected to issue its final decision in the Dobbs v. Jackson Women’s Health this summer.
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Changing America spoke to reproductive and gender law experts on some of the freedoms most at risk if Roe v. Wade is overturned.
Right to contraception
Striking down the constitutional right to an abortion could open the door for states to pass laws both banning abortion and restricting birth control, incorrectly conflating the two and branding contraceptives as abortion-causing medication – which they are not.
Legal experts worry that if Roe v. Wade is overturned then lawmakers could go after Griswold v. Connecticut, which established that married couples have a constitutional right to privacy to buy and use contraceptives without government restriction. That 1965 decision is similar to Roe v. Wade, which found that the Constitution also protects the right to privacy to choose whether to have an abortion.
“The way in which that draft opinion from Justice Alito kicks the legs out from under Roe v. Wade makes it very hard to see what these other rights have left to stand on,” Katharine Franke, director at the Center for Gender and Sexuality Law at Columbia Law School, told Changing America.
Right to same-sex and interracial marriage
Justice Alito’s draft states that there is no constitutional right to abortion because “the Constitution makes no reference to abortion” and that a right to the procedure is not protected by any part of the constitution including the Due Process Clause of the 14th amendment.
The 14th amendment was adopted in 1868 during the Reconstruction Era after the Civil War and was crafted to grant rights to the formerly enslaved people as individual states began to pass discriminatory laws against them.
The first section of the amendment solidifies that no rights guaranteed under the first 13 amendments be denied to any citizen of the United States.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it states.
In addition, Alito adds that a right is only protected if it “is deeply rooted in history and tradition.”
That argument puts a number of constitutional rights at risk, including the right to same-sex marriage, interracial marriage and private sexual relationships. Legal experts fear that lawmakers could go after Lawrence v. Texas, which barred states from making same-sex intimacy a crime, and Obergefell v. Hodges, which legalized same-sex marriage, for the same reason.
“This is a real retreat from the way that the court conceived of rights just even in Obergefell…which viewed the Constitution as a kind of a living document that responds to the realities of today” said Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center.
Right to control medical treatment
Roe v. Wade also affirmed the right to personal autonomy when making medical decisions, not only those related to having or not having children. One example of this is the case Cruzan v. Director of Missouri Department of Health, in which the Supreme Court ruled that Americans have a constitutional right to refuse artificial life-prolonging procedures.
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