WASHINGTON ( Associated Press) – There’s no doubt about what the Supreme Court plans to do with Rowe v. Wade. But uncertainty about the effects of the wave looms large as the court nears a final opinion hopes to overturn the landmark 1973 case that created a nationwide right to abortion.
A leaked first draft of majority opinion in the case, certified by the Supreme Court on Tuesday, suggests a majority of judges are prepared to oust Roe. The draft’s provocative rhetoric is also raising concerns that LGTBQ advances and other matters based on the right to privacy could weaken in the newly hostile political environment.
“It’s about much more than abortion,” President Joe Biden warned Wednesday, adding that the court’s draft opinion could jeopardize same-sex marriage, access to contraception and LGBTQ rights.
Read more: Here’s how abortion rights are also an economic issue
“What are the things next that are going to be attacked? Because this MAGA mob is really the most extreme political organization that has existed in recent American history,” Biden said.
The opinion of the Court can change in big and small ways during the drafting process. So while the final decision in an abortion case appears to be apart from all assurances, the written argument – and its implications – may still be the subject of a heated debate inside the private chambers of the court.
The draft’s potentially broad impact could be handled by other judges, or it could go largely unchanged – advocates and Biden say could lead to even more dire consequences.
The draft opinion, written by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, argues that unencumbered constitutional rights – which are not explicitly mentioned in the document – “should be deeply rooted in the nation’s history and traditions.” And it says abortion doesn’t meet that standard.
Read more: Sen. Patty Murray on the fight to protect abortion rights
Biden and others are sounding the alarm that the same logic could be used to toss out other defenses.
The president said he believed that conservative justices in today’s court, like the failed 1987 Supreme Court nominee Robert Bork, would disagree with the court’s decision in Griswold v. Connecticut, which held that the right to privacy exists which prevents interfering in married couples. Right to buy and use contraceptives.
Cases such as Lawrence v. Texas, which struck down sodomy laws criminalizing gay intimacy, and Obergefell v. Hodges, which legalized same-sex marriage, are based at least in part on the right to privacy.
Alito, in the draft opinion, explicitly states that the court is targeting abortion rights only, not those other matters.
“We emphasize that our decision pertains to the constitutional right to abortion and not any other right,” the draft said. “Nothing should be construed in this opinion as to cast doubt on the precedents relating to abortion.”
Obergefels differs from Roe in that hundreds of thousands of same-sex couples have relied on it to marry and form legal bonds, such as shared property, rights to inheritance, and “set expectations about the future”, the university said Teresa Collett, a professor in Director of St. Thomas School of Law and its ProLife Center.
Courts generally shy away from undoing that kind of precedent. This is in contrast to abortion, which is usually “a response to unplanned circumstances,” Collette said.
watch: Supreme Court ‘got it wrong’ on abortion 50 years ago, says Arkansas attorney general
In addition, the Obergefels relies on the right to privacy, along with an equal protection clause of the constitution.
The current Supreme Court abortion case pertains specifically to a Mississippi law that bans abortion after 15 weeks—before the “feasibility” standard set forth in the 1992 case Planned Parenthood v. Casey, which itself went through a cry for regulating abortion. The initial quarter had progressed beyond the framework.
In the debate in December, all six Conservative judges indicated they would uphold the Mississippi law, and five asked questions suggesting they supported abolishing abortion rights nationwide, raising the issue to individual states. left till
Only Chief Justice John Roberts seemed willing to take the small step of maintaining the 15-week ban, briefly reversing the court’s decision in Casey, while giving up abortion rights in Row.
So far, the court has not allowed states to regulate abortions past the point of viability around 24 weeks. The court’s three liberal justices were certainly in disagreement.
Still, the language and tone that Alito uses could encourage more challenges, said Jason Pearson, a professor of political science at the University of Illinois at Springfield. “If the right to privacy is reconstructed or hollowed out, or curtailed, those are particularly low-case scenarios,” Pearson said.
A challenge to same-sex marriage on grounds of religious freedom may come before the High Court, for example, if a person argues their religious belief prevents them from recognizing same-sex marriage. Cases along those lines have so far been mostly about exceptions to anti-discrimination laws, Pearson said, “but one can broaden the argument for the fact that perhaps same-sex marriage laws are unconstitutional in the first place. “
LGBTQ rights have progressed rapidly over the past decade, and public opinion overall has become more supportive. But over the past year in particular there has been a wave of bills aimed at talking about LGBTQ issues in state legislatures, including transgender youth sports and health care, as well as in some classrooms. Supporters of those bills usually argue that they need to protect the rights of children and parents.
Against that backdrop, the draft opinion, if finalized, could send “a flare-up” to conservative activists, said Sharon McGowan, legal director of Lambda Legal.
watch: How can Congress use its power to influence abortion legislation on a national level?
“Overturning the row would be the most dangerous because of the indication it would send the lower courts to disregard all other precedents,” she said.
“It is starting with abortion. It is not going to end with abortion,” said Mini Timmaraju, president of NARAL Pro-Choice America. “So everyone needs to be very cautious.”
Critics can also take a page from the anti-abortion playbook, which included a number of measures over the decades that dealt with the issue from various angles, imposing limits rather than imposing sanctions and employing unusual strategies such as civil-enforcement mechanisms. Which already essentially allowed Texas. Ban abortion, said University of Oregon professor Alison Gush.
“It opens the door to all kinds of stuff that I think we’re probably going to see now that we have a court that is ready to support that kind of creativity,” she said. “It’s all speculation, but it seems entirely plausible for us to see the Republican experiment on a whole bunch of policies that could be affected by this.”
Donna Lieberman, executive director of the New York Civil Liberties Union, said that “what comes out loud and clear in the draft” is that the agenda is “not just to get rid of abortion but to ban contraception, an all-important progress.” “We’ve built about LGBTQ rights, about the rights of trans children, and about racial equality.”
Associated Press writer Chris Megerian in Washington contributed to this report.
