The U.S. Supreme Court’s ruling allowing states to ban abortion immediately sparked concern Friday among LGBTQ advocates, who feared the ruling could one day allow a rollback of legal protections for same-sex relationships, including the right of same-sex couples to marry, other issues based on the right to privacy.
How is abortion related to gay rights and birth control, legally speaking?
Two of the constitutional provisions on which the High Court relied to rule in Roe v. Wade were also the basis for their decision in the other two opinions: the 14th Amendment and “unlisted rights.”
And while Judge Samuel Alito said in the court’s majority opinion overturning the 1973 Roe v. Wade decision that it only applied to abortion, critics from the court’s conservative majority dismissed that statement. .
In a separate concurring opinion, Judge Clarence Thomas said the court should consider other precedents, including his 2015 ruling legalizing same-sex marriage, a 2003 ruling striking down laws criminalizing same-sex sex, and a 1965 ruling stating that married couples have the right to use contraception. .
What is the 14th Amendment?
The 14th Amendment was passed in 1868 and greatly expanded the due process rights of formerly enslaved Americans.
The amendment has five articles. The best known declares that no state can “deprive any person of life, liberty or property, without due process; nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment has been invoked in important Supreme Court decisions regarding civil rights.
What is an “undetermined right”?
Unlisted rights are those protected by the US Constitution even if they are not explicitly mentioned in the document.
States and the Department of Justice are waging legal battles over the abortion rights the Supreme Court defined in Roe v. Wade. But in 1992, Planned Parenthood v. Casey, a lesser-known key case, paved the way for some restrictions on abortion – so long as they did not meet the definition of “undue burden”. With the help of Florida State Law Professor Mary Ziegler, we break it down in this LXplanation.
How did the Supreme Court apply the 14th Amendment to Roe v. Wade?
Writing for the majority opinion in Roe v. Wade, Judge Harry Blackmun said the court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment. However, while the Supreme Court ruled in favor of a woman’s right to choose, it also recognized the state’s interest in protecting the “potential of human life”.
To balance competing interests, the court established a “quarterly” framework for the legality of abortions:
- First trimester (up to 12 weeks): Gives a woman the absolute right to an abortion during the first three months of pregnancy.
- Second trimester (up to 28 weeks): allows the government to regulate abortion to protect the health of the mother, but cannot prohibit it.
- Third trimester (up to 40 weeks): since the fetus is considered “viable” – can survive on its own outside the womb (around 24 weeks of pregnancy), states may prohibit abortion, except in cases where the life of the mother is in danger.
However, in 1992, the trimester framework was overturned in a decision in the Supreme Court case known as Planned Parenthood v. Casey. Although the judges reaffirmed a woman’s right to an abortion under Roe, they also gave states more leeway to regulate them in all three trimesters.
The court held that for a plaintiff to succeed in a constitutional challenge, it must be shown that the law they are challenging has the purpose or effect of imposing an “undue burden”, which is defined as a “substantial obstacle in the way of a woman seeking an abortion before the fetus achieves viability.” This meant that states could pass regulations that affected the ability to have the procedure even in the first trimester under the guise of protect women’s health Under this new test, many restrictions on abortion have been confirmed.
If the Supreme Court’s leaked draft opinion reversing Roe v. Wade takes effect, it could also lead to tougher state restrictions on birth control, said Seema Mohapatra, a law professor at Southern Methodist University.
What other Supreme Court decisions were based on the 14th Amendment?
Griswold v. Connecticut, which said there is a right of privacy that prohibits states from interfering with the right of married couples to purchase and use contraceptives.
Lawrence v. Texas, which struck down buggery laws criminalizing same-sex intimacy.
Oberfell c. Hodges, who legalized same-sex marriage.
loving v. Virginia, which legalized interracial marriage.
Will the Supreme Court strike down same-sex marriage, access to birth control and other rights?
Many abortion opponents insist that overthrowing Roe will not affect access to birth control or LGBTQ rights. Other factors could also protect these decisions: the Obergefell decision that legalized same-sex marriage was based on equal protection, and hundreds of thousands of couples relied on it to marry and create legal bonds, such as property shared inheritance rights, a precedent that many courts would be reluctant to disturb.
But a sharp rise in anti-LGBTQ rhetoric in the United States and opposition to some forms of birth control from some right-wing circles has advocates concerned that these rights are vulnerable.
” Let’s be clear. Today is about this horrible invasion of privacy that this court is now allowing, and when we lose a right that we rely on and enjoy, other rights are in jeopardy,” Jim said. Obergefell, the plaintiff in the landmark decision legalizing same sex. marriage, who is now running as a Democrat for the Ohio House.
Then there’s Thomas’ concurring opinion, which Sarah Warbelow, legal director of the pro-LGBTQ human rights campaign, called an invitation to “excite fringe organizations, fringe politicians who want to harm to the LGBTQ community.
“There are clearly members of the court who have an outdated idea of what America looks like today and who have a fantasy of returning to their painted idealism of a 1940s and 1950s America, certainly not this that she was really in the 1940s and 1950s,” she says. “And it’s terrifying.”
Connecticut Attorney General William Tong, a Democrat, called the decision “dangerous” and warned it splits the nation in two. He predicted there will be “a tsunami of litigation and sweeping legislation aimed at further eroding the rights we take for granted.”
“Make no mistake, this is just the beginning of a systematic right-wing effort to rewrite decades of foundational legal precedent,” he said.
At the White House, President Joe Biden pledged to do everything in his power to defend the right of a woman to have an abortion in states where it will be prohibited. He warned that the decision could undermine the rights to contraception and same-sex marriage: “It’s an extreme and dangerous course.”