Context
The leaked Roe vs Wade draft opinion has been in the news for its possible impact on abortion rights, but it also paves the way for the erosion of gay rights in America.
Background of abortion rights cases in the U.S.
- Almost 50 years earlier, the U.S. Supreme Court held in Roe vs Wade(1973) that it was unconstitutional for states to ban or restrict abortions before fetal viability.
- Later, Planned Parenthood of Southeastern Pennsylvania vs Casey (1992) reaffirmed Roe’s central holding on viability.
- In December 2021, the U.S. Supreme Court concluded oral arguments in Dobbs vs Jackson Women’s Health Organization, an ongoing case that looks at a 2018 Mississippi law (The Gestational Age Act) that bans most abortions after 15 weeks.
- Keeping Roe and Casey in mind, lower courts permanently enjoined the Mississippi law, but the case eventually moved up to the Supreme Court, with the following question: are all pre-viability prohibitions on elective abortions unconstitutional?
- This question (and the court’s acceptance to answer it) is at the heart of Roe and Casey because the Roe court had already decided that answer in the affirmative back in 1973; and this was re-affirmed in 1992 by the Casey court.
- The leaked first draft of the court’s majority decision in Dobbs, however, departs from precedent and signals a completely different turn.
Originalist reading of the US Constitution
- A running theme in this first draft of the Dobbs judgment was the court’s emphasis on originalism.
- The very first page of the draft says that “the constitution makes no mention of abortion”.
- On page 9 it reads “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
- An originalist reading of the Constitution and an application of similar reasoning as the one applied in this draft opinion (minus the emphasis on protecting “life or ‘potential life”) could invalidate all rights for gay and lesbian Americans.
Implications for other rights
- Gay rights do not have any place in American history and tradition; it is quite the opposite with American history.
- Simply put, a rollback of Roe and Casey could allow state legislatures across the country to re-instate bans or restrictions on gay rights such as limitations on same-sex couple adoptions or sexuality education in schools.
- Moreover, because the Constitution makes no explicit mention of “privacy”, “sexual orientation”, “gay”, “lesbian”, or “gay rights” anywhere, these rights could be challenged further.
- The constitutional recognition of same-sex marriage is, after all, only a recent phenomenon, both globally and nationally.
- In 1992, the Casey court affirmed what was already decided two decades ago in Roe — namely, that women in America had the “liberty” to an abortion under the Fourteenth Amendment.
- However, the Dobbs draft ruling discards this right to “liberty” just as it does the right to “privacy”.
- By specifically re-defining “liberty” and calling into question its applicability in the case of abortions, the court paves the way for potentially reviewing other “liberty” rights not explicitly mentioned in the Constitution — such as the right to travel ( Kent vs Dulles, 1958), the right to inter-racial marriage ( Loving vs Virginia, 1967), and the right to engage in same-sex activity in private ( Lawrence vs Texas, 2003), among others.
Conclusion
The bottom line is that if 50 year-old constitutionally guaranteed rights could be revoked today, then more recent and similarly, situated rights could also be revoked under an originalist reading of the Constitution.
