‘This Opinion Will Open Up The Floodgates:’ What Overturning Roe v. Wade Could Mean For Contraception, LGBTQ+ Rights, And More.

5 min read|May 13, 2022|fbtwitteremail

This summer, the Supreme Court is expected to rule in an abortion case that could rewind the clock on reproductive rights. In 1973, the Supremes established the constitutional right to an abortion with the landmark Roe v. Wade decision. But earlier this month, a leaked draft ruling revealed that the bench may be ready to overturn the decision. Leaving many Americans to grapple with the very real chance that abortion won’t be accessible in nearly half of US states

Meanwhile, the Biden administration says the court’s looming decision could “affect all Americans.” theSkimm joined a phone call with Vice President Kamala Harris to talk about Roe v. Wade. The VP said SCOTUS’s decision raises questions about the country’s trajectory. 

“We should be in the business of the expansion of rights,” she said. “And for quite some time we have been. But this has the potential to deprive people of their rights. And that’s not in the best interest of anyone in our country, regardless of gender.”

Legal experts and rights advocates are also sounding the alarm that the court’s decision could have a ripple effect. Especially because the draft said Roe v. Wade established a right to privacy that wasn’t written in the Constitution. Here’s how the law of the land could change. But first…

What’s the right to privacy got to do with all this?

The 14th Amendment says that people have the right to life, liberty, and due process (aka legal talk for fair treatment). And over the decades, the Supreme Court has essentially said the right to privacy falls under the 14th Amendment's due process clause. 

Since at least the 1960s, the bench has used that clause as the basis for rulings around issues like birth control access, interracial marriage, abortion (with Roe v. Wade), and same-sex marriage. Fast forward to now and Justice Samuel Alito’s draft opinion called the Roe decision “egregiously wrong.” Arguing that it should be overruled because the Constitution doesn’t list the right to an abortion or privacy.

Caroline Polisi is a lecturer in law at Columbia Law School. She said Alito’s opinion is raising all kinds of red flags. “The way that the law works in this country, it's built on precedent,” she said. “This opinion will open up the floodgates for a further erosion of these types of unenumerated rights.” This all brings us to…

The rights that could be on the chopping block if Roe falls

Let’s be clear: The decision isn’t final. And the draft opinion said the court’s decision “concerns the constitutional right to abortion and no other right.” But legal experts are saying ‘that’s not entirely true.’ Seema Mohapatra, a visiting professor at SMU Dedman School of Law, told “Skimm This” that the draft ruling’s argument could be the basis of future challenges to all kinds of existing rights. 

“It really does leave the door open for any other substantive due process rights where abortion is not anywhere directly mentioned in the Constitution,” she said. 

Here’s what overturning Roe v. Wade could mean for…

LGBTQ+ rights

These rights are already under attack across the country. If Alito maintains his reasoning for overruling Roe, advocates worry the following could also be challenged:

  • Same-sex intimacy. In 2003, the justices ruled in Lawrence v. Texas that states couldn’t criminalize consensual sex acts between gay couples. And said it was a violation of the 14th Amendment to make it a crime. 

  • Same-sex marriage. It’s been less than a decade since SCOTUS said the 14th Amendment requires states to acknowledge that love is love. And grant marriage licenses to gay couples. Conservative justices like Alito have called out the ruling before, raising concerns that same-sex marriage could be at risk if it’s challenged.

Reproductive health and marital rights 

A reversal of Roe could affect Americans’ decision of when or if to start a family. But this isn’t just about abortion. It’s also about…

  • Birth control. In 1965, the high court established a right to contraception, specifically for married couples. This case was about a Connecticut law criminalizing the use of birth control. And the justices ruled that the Constitution granted a right to marital privacy. In 1972, that right was extended to single people. Now, advocates worry that contraception — from birth control pills to IUDs to Plan B — could be at risk. Worth noting that birth control isn’t just used for reproductive reasons — many women use it for health issues like migraines, acne, and PCOS

  • Interracial marriage. In 1967, the Supremes' decision in Loving v. Virginia quashed laws against marriage between people of different races. Some rights advocates have said this decision could be challenged since the basis for this ruling was also the 14th Amendment.

Is the US really turning back the clock?

Depends who you ask. While some rights advocates worry about these issues, others are saying ‘there’s no need to stress.’  

Northwestern University law professor John McGinnis told Reuters “there is no likelihood the court is going to revisit” decisions legalizing interracial marriage, access to contraception, and same-sex marriage. 

But others like Polisi aren’t leaving anything off the table. “You can go into a sort of doomsday ‘The Handmaid's Tale,’” she said. “You can get carried away there. But it's no longer theoretical.”

theSkimm

The foundation for many of the liberties people enjoy today — and may even take for granted — extend beyond abortion rights. Only time will tell whether the Supreme Court will set off a domino effect if it overturns Roe v. Wade.

Updated May 13 to include comments from Vice President Kamala Harris

Skimm'd by Maria del Carmen Corpus, Sarah Collins, Maria McCallen, and Kamini Ramdeen-Chowdhury


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