The US Supreme Court dismantled federal abortion protections today in a 6-3 ruling that overturned the landmark 1973 case Roe v. Wade. “The Constitution does not confer a right to abortion,” justice Samuel Alito wrote in the majority decision (pdf).
Alito took pains to note that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” but it was hard to make sense of that line. The due process clause of the 14th amendment, which was the basis of the original Roe decision, underlies many other rights that Americans take for granted and could now be at risk.
A concurring opinion by justice Clarence Thomas (pdf, page 119) was more forthright about the issue. He explicitly cites as up for debate past Supreme Court decisions that gave Americans the right to same-sex marriage (Obergefell v. Hodges); to obtain contraceptives (Griswold v. Connecticut); and to engage in private, consensual same-sex activities (Lawrence v. Texas).
Thomas writes (emphasis added):
…In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
The 14th amendment guarantees “equal protection of the laws” and holds that people cannot be deprived of “life, liberty, or property, without due process of law.” The Supreme Court has frequently interpreted the due-process clause to apply to anti-discrimination rules as well as privacy protections.
In a dissenting opinion, justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan warn that the court’s Republican majority will be emboldened to overturn established rights in the aftermath of the Roe decision. They write (page 151):
Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions.
The dissenting opinion also objects to the majority’s efforts to justify overturning abortion as a constitutional right on the basis that reproductive rights are not “deeply rooted in history.” Breyer, Sotomayor, and Kagan note that for a long time, US law also did not protect the right to interracial marriage or the right to be protected from forced sterilization.
“So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the states too—whatever the particular state interests involved,” they conclude.
In today’s decision, then, both liberal and conservative justices are saying that it’s not just reproductive rights that are up for reconsideration. Overturning Roe is the beginning of an even larger legislative battle over the constitutional rights that Americans are afforded.