Will the Supreme Court target contraception and gay rights next?

·Senior Editor
·7-min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

The Supreme Court on Friday issued a ruling overturning Roe v. Wade, ending nearly 50 years of abortion as a constitutionally protected right in the U.S. As monumental and controversial as that decision is on its own, it also raised questions about whether other court-endorsed rights might also be at risk.

Fueling that discussion, conservative Justice Clarence Thomas called on the court to “reconsider” past rulings that were rooted in some of the same legal reasoning that was the basis for the Roe decision. Writing a solo concurrence to the majority’s opinion in Dobbs v. Jackson Women’s Health Organization, Thomas pointed to cases that created the right to buy contraceptives (Griswold v. Connecticut), ended prohibitions on gay sex (Lawrence v. Texas) and established marriage equality (Obergefell v. Hodges).

In each of those rulings, Roe included, justices established what are known as unenumerated rights, meaning they’re not explicitly named in the Constitution but can be directly connected to rights that are. The right to privacy, for example, is at the heart of the decisions in Roe, Griswold and Lawrence. Other legal scholars have suggested this same logic may mean the constitutional right to interracial marriage — established in Loving v. Virginia — could be under threat as well.

The court’s majority opinion overturning Roe, written by Justice Samuel Alito, repeatedly states that the ruling should not be seen as having any impact on those other cases. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote, adding that rights concerning contraception or same-sex intimacy are “inherently different” from abortion rights.

Why there’s debate

Some legal experts say the justice’s reasoning for overturning Roe directly puts those other rights at risk. Alito wrote in the majority opinion that abortion rights are not “deeply rooted in this Nation’s history and tradition” as a core element of the decision to overturn Roe. Despite his assurances that abortion is distinct from the access to contraception, same-sex marriage and sexual freedom, those rights may also prove challenging to establish as “deeply rooted” in U.S. history. “Either the majority does not really believe in its own reasoning,” the court’s three liberal justices wrote in dissent. “Or if it does, all rights that have no history stretching back to the mid-19th century are insecure.”

The court’s harshest critics on the left also argue that the conservative justices have shown a willingness to impose their right-wing vision on the country, using whatever legal reasoning they can muster.

But others say it’s unlikely that there are four other justices willing to join Thomas in overturning those other decisions. These experts argue that most of the court’s conservatives do strongly believe that abortion is different than other rights because it involves a “potential life.” Some also make the case that while overturning Roe has been a core issue for conservatives for half a century, there isn’t any similar political movement aiming to throw out same-sex marriage or end access to contraception.

What’s next

In order for the court to rule one way or another on things like marriage equality and contraception, it first must agree to hear cases challenging those rights. At the moment, none of the cases on the docket for the next term concern these specific rights, and it can often take years for important constitutional cases to wind their way through the lower courts before being considered by the Supreme Court.

Perspectives

The reversal of Roe has shown that no precedent is safe

“Try as he may, Alito cannot limit the damage he has inflicted with the constitutional dynamite of Dobbs. We are now fully in a new and dangerous era of Supreme Court jurisprudence in which few precedents are safe.” — Ed Kilgore, New York

Four other justices aren’t going to join Thomas in throwing out the other rights

“No other justice joined Thomas’ concurring opinion, which largely reiterated his long-stated views on the legal theories behind many of those decisions. Furthermore, it appears doubtful that many of Thomas’ conservative colleagues would be eager to revisit issues like contraception and same-sex marriage anytime soon.” — Quint Forgey and Josh Gerstein, Politico

Same-sex marriage and contraception fail the same test that led to Roe’s reversal

“Same-sex marriage is not deeply rooted in this nation's history and tradition. Contraception. The rights of interracial marriage. … If we’re really taking a baseline that says the right to be recognized as an unenumerated right has to be deeply rooted in this nation's history and tradition, all of those rights are now imperiled.” — Kenji Yoshino, constitutional law expert, to WBUR

There is no substantial political movement to overturn the other decisions

“The decades-long campaign of resistance to Roe also sets it apart from those rulings. Griswold and Lawrence didn’t lead to any such campaign. Without state legislation to outlaw contraception or sodomy, even a justice who wanted to overturn those rulings would not have any occasion to do it.” — Ramesh Ponnuru, Bloomberg

The court’s conservatives will go after whatever the right-wing political movement identifies as a target

“Conservatives have long attacked the left for supporting a ‘living constitutionalism,’ which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism — one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.” — Adam Serwer, Atlantic

Thomas has a habit of going out on a limb in his opinions

“Thomas has a history of writing these types of concurrences, but he also has a history of being completely on his own here. And that’s exactly what happened today. It’s getting much more attention because this is such a massive, important ruling, but it’s not unusual for Thomas to do this.” — Scott Shackford, Reason

Abortion is unique because it involves an additional life to consider

“As Dobbs notes very clearly, abortion is different from all other privacy-related rights — ‘intimate sexual relations, contraception, and marriage’ — simply because, unlike any of those things, abortion ends a human life and thus invokes a compelling state interest.” — Editorial, Washington Examiner

It would be foolish to trust the conservative justices’ promises

“Less than four years ago, Kavanaugh told the nation, under oath, that he believed Roe was ‘settled,’ then proceeded to unsettle it at the earliest opportunity. No constitutional right favored by progressives is safe from this Supreme Court’s wrecking ball.” — Mark Joseph Stern, Slate

Democrats have the opportunity to codify those rights into law before the court acts

“Are we doomed to board the Republicans’ time machine back to the 19th century? Certainly not. First, Congress can act to secure all the rights that Thomas identified for the chopping block. Let Republicans filibuster protection for abortion, for contraception and for interracial and same-sex marriage. And if they do, then voters can send Democrats with sufficient fortitude to modify the filibuster to protect their fundamental rights.” — Jennifer Rubin, Washington Post

It’s a matter of when, not it, same-sex marriage and contraception come under threat

“Already, fringe groups are making the case for which civil right this Court should dispose of next, and one fringe justice, Clarence Thomas, is pining for the chance to do so. The only remaining questions are how quickly these activists can get test cases before the Court, and how soon Thomas can persuade his colleagues to take the plunge.” — Jay Willis, Balls and Strikes

Thomas’s opinion has provided a playbook for cases challenging other rights

“For Justice Thomas, and indeed, for the conservative legal movement writ large, abortion is just the beginning. The logic of this concurrence will invite and underwrite a raft of challenges to the rights of heart and home that so many of us take for granted.” — Melissa Murray, New York Times

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