By Andrew Chung
WASHINGTON (Reuters) – The U.S. Supreme Court’s decision erasing the constitutional right to abortion provides a roadmap to end other freedoms involving marriage, sexuality and birth control, its three liberal members said on Friday, while conservative Justice Clarence Thomas urged the court to take just that path.
Friday’s 5-4 ruling, authored by conservative Justice Samuel Alito, overturned the 1973 Roe v. Wade decision that legalized abortion nationwide.
The court’s three liberals, in a lengthy joint dissent, condemned the ruling as “catastrophic” and legally flawed – one that would let states force a woman to bring a pregnancy to term, and in some states, “to bear her rapist’s child.”
They also spelled out the threat posed by the ruling to other rights that the court has recognized in decisions over the decades under a legal principle called “substantive due process” arising from U.S. Constitution’s 14th Amendment, which prevents states from infringing liberties without “due process of law.”
These precedents safeguarded an array of personal liberties including contraception in a 1965 decision, interracial marriage in 1967, same-sex intimacy in 2003 and gay marriage in 2015.
We “cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the liberal justices wrote.
They advised the public to be skeptical of the court majority’s assertion that the ruling should not be read to cast doubt on other precedents “that do not concern abortion.”
“Think of someone telling you that the Jenga tower simply will not collapse,” the dissenting justices wrote, referring to a game involving precariously stacked wooden blocks.
Indeed, Thomas called on the court to toss those substantive due process precedents for good.
In future cases, Thomas said, “we should reconsider all of this Court’s substantive due process precedents,” specifically mentioning the rulings protecting the rights to contraception, same-sex intimacy and gay marriage.
President Joe Biden told Americans to brace for further threats to established rights from this court’s conservatives.
“I’ve warned about how this decision risks the broader right to privacy for everyone,” Biden said. “… The right to make the best decisions for your health. The right to use birth control, a married couple in the privacy of their bedroom.”
Though substantive due process rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. The Roe ruling recognized that a right to personal privacy under the Constitution protects a woman’s ability to terminate her pregnancy.
Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to elected legislators.
Friday’s ruling came in a case involving a Mississippi law that banned abortions after 15 weeks of pregnancy.
In a legal filing supporting Mississippi’s defense of its ban, the anti-abortion group Texas Right to Life had urged the justices to write an opinion that leaves decisions on same-sex marriage and intimacy “hanging by a thread.” They are, the group said, “as lawless as Roe.”
Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called “potential life.” But the ruling’s threat to other rights comes from the legal reasoning used by the court’s majority to terminate the abortion right, the liberal justices said, in a view shared by many legal scholars.
Alito wrote that the right to abortion is not valid under the 14th Amendment because such rights must be “deeply rooted” in U.S. history and tradition and essential to the nation’s “scheme of ordered liberty.” Most states in the 19th Century had criminalized abortion, he said.
By the same token, the liberal justices said, American law did not until much later protect other freedoms including whom to marry, to use birth control or to be protected from sterilization.
“So if the majority is right in its legal analysis, all those decisions were wrong. … And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten – does not even ‘undermine’ – any number of other constitutional rights,” the dissenters wrote.
(Reporting by Andrew Chung; Editing by Will Dunham and Scott Malone)
