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Abortion Draft Raises Alarm Over Privacy, LGBTQ Rights (1)

May 3, 2022, 4:01 PMUpdated: May 3, 2022, 5:21 PM

A draft Supreme Court opinion striking down Roe v. Wade has progressives fearing the conservative majority could use the same reasoning to target LGBTQ, contraceptive, and other rights.

Other protections grounded in a constitutional right to privacy could be vulnerable to the same argument that they’re not “deeply rooted in this Nation’s history and tradition,” as Justice Samuel Alito wrote in his draft opinion published Monday by Politico that would overturn the Supreme Court’s 1973 Roe and 1992 Planned Parenthood v. Casey decisions. The Supreme Court confirmed the authenticity of the draft in a statement Tuesday.

The opinion’s disapproval of a broad understanding of a constitutional right to privacy implicates a host of others—from sexual relations to marriage to procreation, legal scholars said.

“This opinion, if it becomes official constitutional law, would be a tipping point in a direction quickly sliding us backwards, really almost to the early part of the 20th century in terms of what the Constitution protects and how it limits state action that trammels what we now take for granted as fundamental rights,” said Columbia Law professor Katherine Franke, who directs the school’s Center for Gender and Sexuality Law.

Implicit Rights

In his draft, Alito said attempts “to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.” Alito noted the outcome “does not undermine” other privacy decisions “in any way” because those other rights don’t implicate “the critical moral question posed by abortion.”

The majority’s legal reasoning could still shift before an opinion is ultimately announced, and the draft published by Politico included no dissenting opinions, which are likely still in the works.

But several justices said during oral arguments in December that such an argument could undermine a host of other rights.

In Roe and Casey, the cases on which the right to abortion rests, “the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can’t intrude on them,” Justice Sonia Sotomayor said.

Those personal decisions have included the right of religious parents to homeschool their children, the right to use contraceptives or not, and the right to marry, Sotomayor said.

“I fear none of those things are written in the Constitution,” she said, suggesting that they could now also be called into question.

LISTEN: Supreme Court Leak May Start a New Era for Justices

Undermining Foundations

Cynthia Soohoo, a professor of law and co-director of the Human Rights and Gender Justice Clinic at the City University of New York School of Law, made a similar point.

“The same arguments that Justice Alito makes against recognizing constitutional protection for abortion,” Soohoo said, “can be made about LGBTQ+ rights and the right to access contraception.”

“Once you kick out the stilts underneath Roe,” Franke said, “there’s nothing to rest those other decisions on. There’s no constitutional foundation for the Lawrence decision saying that criminalizing same-sex sex is unconstitutional, or the Obergefell decision that says same-sex couples have a constitutional right to marry.”

Like state abortion bans, laws prohibiting same-sex marriage or sex have sat dormant in state statutes and constitutions since the Supreme Court made those laws dead-letter in 2015. Now those old laws could be an impetus for a new wave of conservative legal challenges to privacy interest rulings, said Jason Pierceson, a political science professor at the University of Illinois Springfield and researcher of same-sex marriage and sexuality in politics.

Roughly half of states still have some prohibition on gay marriage, and a handful of other states prohibit sodomy—either sex between same sex partners or certain sex acts between opposite-sex partners.

One of those states is Michigan, where the state’s first openly LGBTQ attorney general, Dana Nessel, said she’s “extremely concerned” about how Michigan’s unused laws could “spring back to life” as conservative activists bring cases seeking to chip away at other U.S. Constitution privacy interest rulings. “Once you start to attack the basis for Roe, then I think all those other building blocks start to fall,” Nessel (D) said.

Reliance Interests

Cathryn Oakley of the Human Rights Campaign cautioned that the implications for some rulings, like that guaranteeing the right to same-sex marriage, could be a long way down the road. That’s in part because Obergefell also has threads of equal protection and liberty, which are on stronger footing than the court’s privacy jurisprudence, Oakley said.

Reliance interests—including by people already married under the court’s same-sex marriage decision—could be another reason for the justices to move more cautiously.

“To overturn Obergefell would be a much graver attack on reliance interests than telling people you need to plan your sexual activities in such a way that if you want to avoid pregnancy, you have a very high rate of success,” said Teresa Stanton Collett, a professor at the University of St. Thomas School of Law in Minneapolis and director of the the school’s Prolife Center.

Still, Chase Strangio, who is the deputy director for transgender justice with the ACLU’s LGBT & HIV Project, said it “would be foolish for us to believe that any erosion of abortion rights through the decimation of Roe and Casey will be limited to these contexts.”

Transgender rights “are already so precarious,” he said, that if the draft opinion becomes law it will only add fuel to the fire to discriminate against trans youth.

Broader Impact

Franke said the opinion could stretch even more broadly.

The draft opinion is “a sweeping reassessment of constitutional law generally, not just as it relates to abortion or privacy, but it threatens to reverse a generation of constitutional rights well beyond those that involve sex and sexuality,” she said.

By taking aim at “substantive due process"—the idea that certain rights are so fundamental that they can’t be taken away by the states—the opinion calls into question “a wide range of cases having to do with police searches of your body, forced drug tests, police brutality cases,” she said. “A wide range of government misconduct also could be on the chopping block in terms of what the Constitution prohibits”.

Soohoo said the court’s willingness to overrule Roe after nearly 50 years is especially concerning.

“The only thing that has changed is the composition of the Court,” she said, “and this lack of respect for precedent suggests that overturning Roe is just the beginning for this Court.”

—With assistance from Madison Alder and Alex Ebert

(Updates with additional details about existing state laws beginning in 14th paragraph.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com