How the dismantling of Roe v Wade could jeopardize other “basic human rights” | Deer vs. Wade

VSAmerican academics have said that a litany of rights, from same-sex marriage and sex to birth control and in vitro fertilization, could be called into question if the highest court in the country decides to overturn or weaken Roe v Wade.

The Supreme Court heard arguments last week in the Dobbs v Jackson Women’s Health Organization case, which concerns whether the state of Mississippi can ban abortion at 15 weeks gestation. about nine weeks before the bans were allowed under current law.

The Mississippi case is widely regarded as the most significant abortion law case since Roe v Wade, when the Supreme Court effectively legalized abortion nationwide in 1973. A decision in the case Dobbs is expected in June 2022.

While the Supreme Court’s opinions were notoriously difficult to predict, a majority of conservative-leaning court justices appeared inclined to restrict or severely overturn Roe v Wade, which protects abortion rights in states hostile to the procedure.

Legal scholars have warned that the impacts of such a ruling would likely be widespread, as abortion rights are rooted in the same implicit constitutional right to privacy that underlies other intimate personal decisions Americans make. now for granted.

Gay rights, contraceptives, some fertility treatments and even interracial marriage, “are at risk because they are all rooted in this right to privacy,” Melissa Murray, professor of law at the Law School of New York University and expert in constitutional, family and reproductive law. human rights law, the Guardian said.

“All of this has been implied because they are considered basic human rights,” Murray said. “You don’t need the state to recognize them because they are vested in you as a human being. “

Currently, states are prohibited from prohibiting abortions before a fetus can survive outside the womb, a concept known as “viability.” But at the December 1 hearing, a majority of judges appeared poised to uphold Mississippi law, which would require either overturning the “viability” standard or overturning Roe v Wade entirely.

In arguments, the judges indicated several ways to reinterpret the Roe v Wade decision. Some, like Justice Clarence Thomas, have been skeptical that there is a right to privacy and were influenced by the absence of an explicit reference to law in the constitution, a concept known as “textualism”.

“If we were to talk about the Second Amendment, I know exactly what we are talking about,” Thomas said. “If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It’s here.”

This argument could be coupled with an argument made by conservatives, such as Mississippi Solicitor General Scott Stewart, who argued that an abortion right is not based on “history or tradition.” from the country.

“A right to abortion [is] not anchored in the text, ”said Stewart. “It is based on abstract concepts that this court has rejected in other contexts as providing a substantive right.”

The theory behind this right to privacy is called “substantial fair process”, or the doctrine that the constitution protects both due process, such as the way the criminal law is applied, and “substantial” guarantees of life, liberty and property.

“If you ask where the rights come from in the US constitution, there are basically two general answers,” said Mary Ziegler, a Florida State University law professor and historian who has studied abortion rights since Roe. v Wade. “There are the rights set out in the text of the constitution,” such as the right to bear arms or against unreasonable searches and seizures, “and there are other rights, such as the right to marry and the right to marry. to be parents who are not in the text of the Constitution “.

These are rights established by substantial due process. For example, in 1965 the court overturned birth control bans for married couples in Griswold vs. Connecticut. In 1967 with Loving Against Virginia, the court struck down anti-miscegenation laws that prohibited interracial marriage. In 1972 at Eisenstadt vs. Baird, the court found that people who were not married were also entitled to birth control. In 1973, the court recognized the right to terminate a pregnancy.

“These rights of parental autonomy are the basis of the right to privacy, marriage is included in it,” said Murray. “In a later case, the state says that the marriage [and] procreation are basic civil human rights.

Substantial due process cases continued into the modern era, when in 2003 the court struck down anti-sodomy laws in Lawrence vs. Texas, and established a right to homosexual conduct. In 2016, the court found that same-sex couples also had the right to marry in Obergefell vs. Hodges.

Lawyers for the Jackson Women’s Health Organization responded on the principle of substantial due process when asked about it by Thomas.

“If I had to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would that be? ”Thomas asked.

“It’s freedom, Your Honor,” said Julie Rikelman, legal counsel for the Center for Reproductive Rights, who represented the abortion clinic.

Dobbs court briefs directly challenge this principle, as do those of the conservative anti-abortion group Texas Right to Life. Lawyers for the group, conservative legal activists Adam Mortara and Jonathan Mitchell, argued that the court does not necessarily need to overturn rulings protecting gay rights.

“But neither should the court hesitate to write an opinion that leaves those decisions in abeyance,” Mortara and Mitchell wrote. “Lawrence and Obergefell, although much less dangerous to human life, are as lawless as Roe. The same brief argued that women could control their reproduction by not having sex. Neither Mitchell nor Mortara responded to a request for an interview.

Until the Supreme Court renders a decision, it is not clear how the rights protected by substantial due process might be affected. However, academics consider same-sex and reproductive rights to be the most vulnerable because there is an active political campaign to limit them. In contrast, there are few contemporary critiques of interracial marriage.

If Roe v Wade is rescinded, “It will be on the ground that it was a right that was unrelated to the constitutional text,” Murray said. If this view prevails over the court, contraceptive rights, gay rights and in vitro fertilization could also be quickly involved, because “all of these things are independent of the constitutional text and were historically not available to states. -United”.

In addition, the history of abortion rights can provide a roadmap for other rights to be impeded, even if substantial due process prevails.

Murray gave the example of a 2017 case, in which three Tory judges, led by Judge Neil Gorsuch, argued that states could restrict birth certificates from same-sex parents. Gorsuch argued that there did not appear to be anything unconstitutional about a “biologically based birth registration scheme” where only one parent of the same sex would be listed on the certificate.

“It’s a really good example of how they took Roe apart on a piecemeal basis and could gradually be applied to those other rights,” Murray said.