Republicans Block Bill That Would Protect Abortion Access: Live Updates

WASHINGTON — When the Supreme Court heard arguments in December on the fate of the constitutional right to abortion, it was already clear that other rights, including same-sex marriage, could be threatened if the court overturns Roe v . Wade.

The logic of this legal earthquake, Judge Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could also sweep away other precedents.

The judges’ questions about the broader consequences of a decision removing the right to abortion were probing but abstract and conditional. The release last Monday of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, made these issues urgent and concrete.

Judge Samuel A. Alito Jr.’s opinion provided mixed signals as to its scope and consequences. On the one hand, he affirmed, in a kind of denial which had a defensive tone, that the other rights would remain guaranteed.

“To ensure that our decision is not misunderstood or misinterpreted, we emphasize that our decision concerns the constitutional right to abortion and no other rights,” he wrote. “Nothing in this notice should be construed as challenging precedents that do not relate to abortion.”

On the other hand, the logic of the opinion left a lot of room for debate.

He said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the general reasoning of the draft opinion, for contraception, same-sex intimacy and same-sex marriage, rights established by three Supreme Court decisions which have been discussed at some length in argument of December.

During the row, Judge Sotomayor clashed with Scott Stewart, the Solicitor General of Mississippi, who was defending a state law banning most abortions after 15 weeks of pregnancy.

“I’m not trying to argue that we should overturn these cases,” she said of the other rulings. “I just think you’re covering up when you say any decision here would have no effect on those.”

Mr Stewart tried to single out Roe’s other three decisions, saying they were clearer, resulted in greater public confidence and did not involve “the deliberate end of human life”.

Judge Sotomayor was unimpressed, saying all the cases were based on the same kind of constitutional reasoning. “I don’t know if your answer makes sense,” she said.

Judge Alito’s draft opinion is three months old, and subsequent drafts are almost certain to have clarified and refined his arguments. But the draft’s reasoning has alarmed gay rights supporters, who say they fear the final notice, if anything like the draft, could jeopardize hard-won victories.

“None of us are immune to the extreme anti-women and anti-LGBTQ ideology that now dominates this court,” GLAAD President Sarah Kate Ellis said in a statement.

Judge Alito, for his part, made no secret of his hostility to Obergefell v. Hodges, the 2015 ruling on same-sex marriage. In 2020, when the court dismissed an appeal from a county clerk who had been sued for refusing to issue marriage licenses to same-sex couples, he joined a statement written by Judge Clarence Thomas who called the unconstitutional decision.

“In Obergefell v. Hodges,” the statement said, “the court read a right to same-sex marriage into the 14th Amendment, even though that right is nowhere to be found in the text.”

This is the same argument that the draft opinion advances on the right to abortion. Justice Alito’s efforts to distinguish the two issues may therefore seem half-hearted to some.

The main distinction Justice Alito drew was that there was significant moral value at issue in Roe and in Planned Parenthood v. Casey, the 1992 decision that reaffirmed his central position.

“Roe’s advocates characterize the right to abortion as similar to rights recognized in past decisions regarding issues such as intimate sexual relations, contraception, and marriage,” Justice Alito wrote, “but abortion is fundamentally different, as Roe and Casey recognized, because it destroys what these rulings call “fetal life” and what the law before us describes as an “unborn human being.”

Judge Alito reviewed the precedents cited by Roe and Casey to justify their abortion protection. They included those on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the upbringing of one’s children, and the right not to be sterilized without consent.

He also cited two “post-Casey decisions”, Obergefell and Lawrence v. Texas in 2003, which struck down a Texas law that made gay sex a crime.

Justice Alito, a careful drafter, then seemed to distinguish between the two sets of decisions.

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “So they are inappropriate. They do not support the right to obtain an abortion, and therefore our conclusion that the Constitution does not confer such a right does not in any way weaken them.

It is perhaps telling that this passage from the draft opinion does not specify whether its conclusion undermines the two post-Casey rulings on gay rights.

In general, Judge Alito wrote that he was wary of “attempts to justify abortion with appeals to a broader right to autonomy”, saying that “could grant fundamental rights to illicit drug use, to prostitution, etc.

“None of these rights has any claim to be deeply rooted in history,” he added, a point that could also be made about same-sex marriage.

The Biden administration, in its brief supporting abortion providers challenging the Mississippi law, said overturning Roe and Casey would also “threaten court precedents that the due process clause protects other rights, including the rights to same-sex intimacy and marriage, interracial marriage and to use contraception.

“None of these practices are explicitly mentioned in the Constitution,” the brief states, “and most of them were broadly prohibited when the 14th Amendment was passed.”

Credit…Doug Mills/The New York Times

There are limits to analyzing the reasoning of published Supreme Court opinions, let alone drafts, said Cornell law professor Michael C. Dorf. “Logic and syllogisms don’t get us very far in the law,” he says.

If the draft or something like it is released in the coming weeks, he said, “it portends big changes because it signals that the five most conservative justices are ready to debate controversy on issues which interest them”.

In the draft opinion, Judge Alito insisted that “we cannot allow our decisions to be affected by outside influences such as concern about public reaction to our work.”

Judge Thomas echoed the point during a court conference in Atlanta on Friday, according to news organizations in attendance. “We can’t be an institution that can be bullied into just giving you the results you want,” he said. “The events earlier this week are a symptom of that.”

Yet the court is rarely radically out of step with public opinion, and support for same-sex marriage is high and rising.

Judge Thomas reportedly voted with Judge Alito in the abortion case, along with the three court members appointed by President Donald J. Trump: Judges Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Mr. Trump had vowed to appoint judges who would overrule Roe, and the draft opinion suggested he was close to succeeding. His attitude toward the same-sex marriage ruling, which his appointees may or may not share, was more tolerant.

In an interview on “60 Minutes” shortly after the 2016 election, which revealed a flexible conception of the power of precedent, he said the court should overrule Roe, who was over 40 and had been reaffirmed several times.

The ruling on same-sex marriage, handed down the previous year, was another matter, he said.

“It’s the law,” he said. “It was settled by the Supreme Court. I mean, it’s done.

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