After Roe, could contraception, same-sex marriage be next?

2022-09-17 07:46:48 By : Ms. Bella Liu

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FILE - Supreme Court Justice Clarence Thomas speaks Sept. 16, 2021, at the University of Notre Dame in South Bend, Ind. Thomas says the Supreme Court has been changed by the leak of a draft opinion earlier this month. The opinion suggests the court is poised to overturn the right to an abortion recognized nearly 50 years ago in Roe v. Wade. The conservative Thomas, who joined the court in 1991 and has long called for Roe v. Wade to be overturned, described the leak as an unthinkable breach of trust. (Robert Franklin/South Bend Tribune via AP, File)

Police officers stand guard behind steel fencing and barricades surround the Supreme Court Friday.

The Supreme Court of the United States in Washington, D.C.

CITGRISWOLD-6/10/05-Mia This is a reproduction of a photo from June of 1965 of Mrs Estelle Griswold (left) and Mrs Ernest Jahncke, President of Parenthood League of Conn. They were celebrating the courts decision of Griswold vs. Connecticut. Photo courtesy of New Haven Colony Historical Society.

Catherine Roraback, left, with her cousin, Andrew Roraback, then a state senator, now a supreme court justice.

The U.S. Supreme Court decision overturning Roe v. Wade has raised concerns that the court could reverse other decisions, including a landmark Connecticut case that affirmed the right to contraception, as well as interracial marriage and the right of same-sex couples to marry.

In a separate opinion concurrent with the majority, Associate Justice Clarence Thomas suggested that the court’s decision on Roe v. Wade should have implications on same-sex marriage and the right to access contraception.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.

State Sen. Bob Duff, D-Norwalk, said the court’s Roe decision was “probably the first domino to fall when it comes to long-established case law.”

“I view this as the first in a series of ways that Supreme Court will take away rights when it comes to same-sex marriage, voter rights, contraceptives, interracial marriage, gun rights and even the rule of law, which is what our democracy is based on,” he said.

Almost a decade before Roe, the case Griswold v. Connecticut set the stage for a discussion of reproductive rights. The use of contraceptives was illegal in Connecticut in 1965, until attorney Tom Emerson successfully argued before the U.S. Supreme Court that a couple had the right to use contraception, if they so chose.

The court’s 2003 ruling in Lawrence v. Texas said that individual states did not have the right to outlaw gay sex. Twelve years later, the court ruled in Obergefell v. Hodges that same-sex couples are guaranteed the same right to marry by two clauses in the Fourteenth Amendment, due process and equal protection.

Loving v. Virginia is another case referenced in the Roe opinion. In that 1967 ruling the court held that states do not have the right to prohibit interracial marriage.

“In this Supreme Court, which has just overturned a 50-year-old protection for women’s fundamental freedom, everything is on the table,” Sen. Richard Blumenthal said during a Thursday press conference. “Marriage equality, contraception rights, all of them could be on the cutting block. This Supreme Court is purely outcome-driven by an ideological bent that is going to take them down that road.”

Attorney Gen. William Tong said in a release that “we must be clear-eyed and realistic about what this catastrophic decision signals for every single major legal question before the court.”

“And we need to be ready to fight, because it’s crystal clear that marriage equality, access to birth control, interracial marriage, and the right to privacy and autonomy in so many more personal decisions will be tested,” Tong said.

State Rep. Steve Meskers, D-Greenwich, said the court has shown itself to be a group of “bizarre ideologues.”

“... Thomas said landmark high court rulings that established gay rights and contraception rights should be reconsidered now that the federal right to abortion has been revoked,” he said.

Thomas, however, was the outlier among the court. Both the majority opinion, written by Associate Justice Samuel Alito, and a separate concurring opinion written by Associate Justice Brett Kavanaugh -- as well as a dissent authored by justices Stephen Breyer, Elena Kagan and Sonia Sotomayor -- said the court’s decision on Roe should not be extended to same-sex marriage or contraception.

“We have stated unequivocally that ‘Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote, echoed by Kavanaugh: “I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

The dissent, though, cast doubts that the court would not use the Roe decision, and the 1992 so-called Casey decision which upheld Roe, as a basis for similar decisions, specifically referring to Griswold.

“No one should be confident that this majority is done with its work,” the dissent says. “The right Roe and Casey recognized does not stand alone. To the contrary, the court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception.”

Duff said an expectation that the Roe ruling would not lead to further decisions is “naive.”

“I don’t think any of us are naive enough to think this isn’t an opening of a Pandora’s Box of an extreme fundamentalist agenda that they’ve had for decades,” he said.

U.S. Rep. Rosa DeLauro, D-3, said she was not surprised by the decision and was concerned about what lies ahead.

“This activist conservative Supreme Court that lambasts decisions it does not like as judicial activism has made a dangerous move, disregarding science and decades of legal precedent to strip away a woman’s fundamental and constitutional right to make her own health care decisions,” DeLauro said.

Todd Fernow, a professor emeritus at the UConn School of Law, said he does not expect Griswold to be in danger, calling Thomas’ argument “somewhat prosaic.”

“Alito and some of the majority have gone pretty far to explicitly limit its application to abortion cases,” Fernow said. “There’s no blood in the water when it comes to contraception.”

He said Griswold overturned “an archaic law” when the court ruled in 1965.

“This is an old debate,” Fernow said. “Thomas is on the losing side of it.”

Fernow said the right to same-sex marriage, granted in the Obergefell ruling, is more likely to be overturned.

“I would worry a little about the more controversial laws like Obergefell,” he said. “That could be really in jeopardy.”

“Not far behind, there’s Loving v. Virginia,” he said.

Jordan Fenster is an award-winning reporter, podcaster and children's book author.  He serves as digital products editor at Hearst Connecticut Media and lives in Stamford with his dog, cat and three daughters.