Analysis: Supreme Court to Overturn Roe v. Wade — Is Obergefell Next?
May 4, 2022 Philadelphia Gay News
In 2016, Democratic presidential candidate Hillary Clinton famously said, “I’m the last thing standing between you and the Apocalypse” in a New York Times interview.
Hillary was prescient. Throughout her campaign, Hillary had argued that the Supreme Court was on the ballot. Then-Senate Majority Leader Mitch McConnell (R-KY) had blocked Merrick Garland, President Obama’s Supreme Court nominee, from even getting a hearing. For 14 months there was a vacant seat on the Court after the sudden death of Justice Antonin Scalia.
Clinton’s loss in 2016 led to the current 6-3 conservative majority on the Supreme Court. Donald Trump was the first president since Ronald Reagan to appoint three justices. But while two of Reagan’s picks became swing voters — Sandra Day O’Connor and Anthony Kennedy — Trump’s choices are proving to be even more conservative than their confirmation hearings suggested.
Yet no one, except perhaps Hillary Clinton, was prepared for the details leaked in a draft opinion on May 2 from the Supreme Court and published by Politico. The opinion was in the Mississippi case of Dobbs v. Jackson which would limit abortions to no later than 15 weeks.
The leak itself is news, an unheard of action which Chief Justice John Roberts has referred to the marshal for investigation. Pennsylvania’s GOP Sen. Pat Toomey, who is retiring after this term, said in a statement, “Leaking a premature Supreme Court opinion — regardless of the subject matter — undermines the Court as an institution and erodes America’s trust in this pillar of our constitutional structure.”
The bombshell opinion has reverberated nationwide and sparked protests and vigils around the country since it was published late Monday night.
Less than an hour later, Hillary tweeted: “Not surprising. But still outrageous. This decision is a direct assault on the dignity, rights, & lives of women, not to mention decades of settled law. It will kill and subjugate women even as a vast majority of Americans think abortion should be legal. What an utter disgrace.”
Written by Samuel Alito, the Court’s most conservative justice, and supported by the conservative majority, the opinion would overturn Roe v. Wade and the landmark 1992 Pennsylvania case of Planned Parenthood v. Casey, effectively ending all federal protections for abortion and referring abortion back to the states — the very issue Casey tried to vitiate. Alito contends that there is no constitutional support for either case and so both must be overruled.
The draft reads: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
Alito’s draft also claims the right to end a pregnancy is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” That last is the benchmark the court has used for decades to define constitutional protections.
Alito wrote, “Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The Supreme Court’s 7-2 ruling in Roe v. Wade argued that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion.
The Casey ruling, brought as a challenge to the Pennsylvania Abortion Control Act of 1982, narrowly reaffirmed Roe in a 5-4 decision which allowed some of the elements of the Abortion Control Act to remain in place.
It didn’t take long for legal scholars and SCOTUS watchers to connect the dots from overturning Roe to overturning Obergefell v. Hodges, which legalized same-sex marriage in 2015 and even Lawrence v. Texas, the 2003 ruling that banned laws against consensual sex between same-sex adults. As SCOTUS scholar Mark Joseph Stern explained on Twitter, “The meat of Alito’s opinion is a lengthy repudiation of ‘unenumerated rights’ that are not laid out in the Constitution. The Supreme Court may only protect these rights, Alito says, if they are ‘deeply rooted’ in history. Abortion is not. Neither is same-sex marriage.”
Within hours President Biden himself had joined in that discussion, noting the right to marry would be at risk next. Speaking to a press gaggle outside the White House Tuesday, Biden said, “If this decision holds, it’s really quite a radical decision.”
Pivoting off the recent Don’t Say Gay law in Florida, Biden queried, “Does this mean that in Florida they’re going to pass a law saying that same-sex marriage is not permissible — it’s against the law in Florida? It’s a fundamental shift in American jurisprudence.”
Jonathan Mitchell, a former clerk to Justice Antonin Scalia, had raised this issue in an amicus brief in the Mississippi abortion case that is the pivot for Alito’s opinion. Mitchell, who is also former Solicitor General of Texas, argued that Roe v. Wade is unconstitutional and that cases underscoring LGBTQ rights are “as lawless as Roe” and as such must be overturned.
Alito himself has been vocal about his continued opposition to marriage equality. In a speech to the conservative Federalist Society in 2020, Alito asserted that opposing same-sex marriage is now “considered bigotry.”
“You can’t say that marriage is a union between one man and one woman. Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry,” Alito said in his speech.
In recent months states have been passing increasingly restrictive anti-abortion and anti-LGBTQ legislation in tandem. On May 3 Oklahoma enacted the most restrictive anti-abortion law in the country, banning abortions at six weeks, before most people even know they are pregnant. The state also just passed restrictive anti-LGBTQ legislation.
According to ABC News on May 3, 26 states are poised to enact similar laws — Pennsylvania among them. And while Gov. Tom Wolf tweeted that he would veto any such legislation while he remains governor, the GOP-led legislature is hoping for a Republican win in the governor’s race.
State senator Doug Mastriano is now a front-runner for the GOP nomination for governor of Pennsylvania. On May 4 the Philadelphia Inquirer noted that Mastriano has “become the epitome of a resurgent movement of Christian nationalism.”
Mastriano supports legislation that would ban abortion after six weeks, and the Inquirer quotes him saying he will “do whatever it takes to end the barbaric holocaust of abortion happening in our state.”
Mastriano is also staunchly anti-LGBTQ.
The SCOTUS draft contradicts what most Americans think about both abortion and Roe v. Wade. A new ABC/Washington Post poll reveals 70% of Americans believe the decision to have an abortion should be between a woman and her doctor. Only 24% think it should be regulated by law and 6% have no opinion.
54% say the Supreme Court should uphold Roe v. Wade and 28% say they should overturn the ruling, with the remainder undecided.
Alexis McGill Johnson, President and CEO of the Planned Parenthood Federation of America, said in a statement sent to PGN, “The draft opinion from Justice Alito also puts other essential rights, including access to birth control and marriage equality, at risk.”
Johnson said, “Abortion is still legal. Our doors are still open. If you or someone you know needs care, Planned Parenthood is here for you just like always. You can also visit abortionfinder.org to find more providers in your area.”
Sarah Warbelow, Legal Director for the Human Rights Campaign, said in a statement, “This leaked ruling is outrageous and it is dangerous for women and all LGBTQ+ people — including queer people, many non-binary people, and transgender men, who need access to reproductive health care. And we know that all of our rights are now on the line.” Warbelow added that while Obergefell v. Hodges was not under immediate threat, the SCOTUS opinion “encourages state lawmakers pandering to the base to test the limits of court recognized LGBTQ+ equality,” but said, “We will fight back.”