Local experts say Roe decision not the end of anti-abortion advocacy, other rights may be affected

·8 min read

Jun. 25—Local experts say the push to end abortion access won't end with Friday's overturn of Roe v. Wade, and some believe rights beyond the reproductive — including same-sex marriage and interracial marriage — could be revisited next.

Friday's Supreme Court of the United States decision to overturn Roe v. Wade — which for 50 years Constitutionally protected the right to have an abortion — handed decisions on abortion rights and access to states.

But even with Friday's decision — considered a major victory for the anti-abortion movement — anti-abortion measures will not stop, legal and history experts said.

States like Oklahoma, which has the most stringent anti-abortion law in the country, are free to go further, with measures like banning travel to other states for abortions, said Joseph Thai, a presidential professor of law at the University of Oklahoma.

Should Congress or the White House flip in coming years, a national ban on abortion is possible, he said.

Jennifer Holland is an assistant professor of U.S. history at OU who has written extensively on the history of anti-abortion movements. Holland said overturning Roe has never been the end goal for anti-abortion activists.

"They'll be looking to either Congress — not this Congress, but future Congresses — to pass a law outlawing abortion, and also they will return to the Supreme Court, and they'll try to (say) that the fetus will be protected," she said. "Likely they'll say that the fetuses will be protected as citizens under the Fourteenth Amendment."

Holland said new restrictions on abortion — and possible coming restrictions — will require significant, costly policing by states. While some pro-life activists believe that the end of Roe will mean states will invest in stronger social safety nets for families — a belief echoed by several Oklahoma politicians Friday — Holland said she believes its unlikely that a state like Oklahoma will work to create those measures.

Oklahoma Republican politicians said Friday that the anti-abortion fight will continue. In his Friday afternoon press conference, Gov. Kevin Stitt said he hopes "that the rest of America will follow Oklahoma's lead" in restricting abortion access.

"I praise God for this incredible victory in the fight to protect the unborn," State Rep. Nathan Dahm, R-Broken Arrow, said in his Friday statement. "The Supreme Court has overruled the abomination of Roe v. Wade and returned the issue of abortion to the states. Unfortunately, this means the fight to protect the unborn is not over. We cannot rest."

Thai said this is the first decision in modern court history that has overturned a settled right instead of advancing one; previous overrulings of court precedent "expand(ed) who gets to enjoy the fundamental rights outlined in the Constitution," he said.

But Rick Tepker, an OU professor of law emeritus specializing in Constitutional studies, said this moment needs to be viewed with more context and nuance.

The fall of Roe has been decades in the making, Tepker said, starting with the Roe opinion itself, which Tepker said was "rickety" and light on Constitutional analysis to back its points.

"Roe has been dying the death of 1,000 cuts since the 80s. The trimester system went in the 80s. The strict scrutiny test went in the 1990s," Tepker said. "There are all sorts of laws that can be passed by states that kind of discourage or deter abortion that have been upheld. Today's death is the end of a very long process — it's not an earthquake, cataclysm, dramatic transformation."

Tepker said while looking toward the future is mostly guesswork, he believes that "there will be a counterattack" to Friday's decision that will dig into the opinion at the edges.

"For example, I believe this is an opinion that says it will turn a blind eye and a deaf ear toward state legislation that categorically dismisses the medical interests of women — whether it be life or health — and I don't know how one reconciles that with equal protection," Tepker said. "...Alito cited a couple opinions from the 1970s that are basically mocked and ridiculed, which basically say 'if you discriminate against the pregnant, or those who are capable of pregnancy, that's not gender discrimination.' Well, good luck with that ... I think there is much that can be deemed to be exceptionally weak in the rationale of Justice Alito."

The future for LGBTQ+ rights, birth control

Experts are a little more split on what the Roe reversal means for other rights decided by the court in recent decades.

In a concurring opinion issued Friday, Justice Clarence Thomas specifically said the court should reconsider cases like Griswold V. Connecticut (which protects married couples' rights to birth control), Lawrence V. Texas (which protects intimate same-sex acts) and Obergefell v. Hodges, the 2015 decision that protects same-sex marriage.

Questions about the standing of other Supreme Court-adjacent rights are relevant in Oklahoma. In an interview with The Transcript on gun rights two weeks ago, Rep. Justin Humphrey, R-Lane, said he believes the rights of the voters and the states should trump the opinions of the court on such matters.

"The morality has to come from the people, but again, here's the deal — when the people vote to say that one man and one woman is what we recognize as marriage, and the court illegally takes that away, then, yes, we as legislators should step up and say, 'You don't have the authority to do that, and we're not following that.' And I think we could," Humphrey said. "I think we could file a lawsuit against it, I think it's fair. The states have the right, so the state rights are there for the states — not the federal government, and dang sure not the court system, who are unelected people."

Friday's Roe decision leans partially on the reasoning that the right to abortion is invalid because it is not a right "deeply rooted" in the nation's "history and traditions"; the opinion holds that abortion is also not protected by the Fourteenth Amendment. But Thai pointed out that during the era of American history referenced in Friday's opinion, many rights for many people did not exist.

"The court's methodology is that, 'Look, we only recognize rights that were enshrined in the nineteenth century," Thai said. "Of course, in the nineteenth century, women couldn't vote, they could not end their pregnancies — schools were segregated. Same-sex couples could be jailed for their intimate choices. Contraception for married couples and unmarried couples was illegal. And that's the world we're headed back to."

The constitutional rights afforded by decisions like Obergefell or Loving made progress where states would not, Thai said.

When the Loving decision came down in 1967, interracial marriage was still illegal in Oklahoma — the state's own Supreme Court had recently upheld that opinion, Thai said. Lawrence v. Texas, issued in 2003, directly overturned Oklahoma's sodomy laws, which criminalized intimate same-sex acts.

Following the logic used in Friday's opinion, Thai said he believes rights like same-sex marriage and intimate acts and birth control are "on the chopping block."

"It's open season after this decision if we treat the logic of this decision seriously, because the governing principle, again, is, 'What rights are deeply rooted in our nation's history and tradition?'" Thai said. "If the benchmark is, "You only have rights that were recognized in 1791, when the Bill of Rights was enacted, or 1868, when the Fourteenth Amendment guarantees of equality and liberty were enacted,' then it's very easy to copy and paste this opinion."

Tepker is less certain — he believes it's "not very likely" that cases like Obergefell or Lawrence are revisited.

Tepker said this isn't the first time Thomas has made these kinds of remarks — though before, he was not in the majority on the court — and at this time, he's not seeing the same political force in the movement to overturn Griswold that he has in the anti-abortion movement.

When it comes to LGBTQ+ rights specifically, Tepker said he sees the 2020 Bostock v. Clayton County decision — which ruled that LGBTQ+ people are protected from discrimination on the basis of sex — as a precedent that would make it more difficult to overturn other rights.

Holland said that for many years, the fight against abortion was very single-minded — advocates purposefully didn't focus on other issues so they could effectively reach people with a narrow agenda.

The anti-abortion movement didn't even stray into talking about the death penalty or birth control — an issue intrinsically tied to abortion in the Catholic faith — because those were more divisive issues, she said.

In the last few years, though, she's seen a shift.

In an amicus brief filed in support of Mississippi in Dobbs v. Jackson Women's Health, the group Texas Right to Life said the logic that could be used to end Roe could also be applied to other rights — like same-sex marriage and birth control — whose "textual and historical provenance are equally dubious."

Texas Right to Life's brief calls the same-sex marriage and intimacy decisions "as lawless as Roe."

"I think that with a court change, the movement has felt a little freer to say a little bit more (about) other priorities," Holland said. "The Texas Right to Life amicus brief said 'these are all potentially lawless decisions.' And so, I think that the movement strategically didn't work on those issues before, but I think now, the strategy could be very different because they've won this huge victory."

Emma Keith is the editor of The Transcript, where she covers Norman Public Schools and the University of Oklahoma. Reach her at ekeith@normantranscript.com or at @emma_ckeith.