In early 2021, the U.S. Supreme Court agreed to hear Mississippi’s challenge to Roe v. Wade’s central principle on abortion.
While the so-called “Dobbs case” received some attention at the time, especially among reproductive justice advocates, most Americans were probably unaware that the state of Mississippi had put into motion the end of the federal right to abortion in the United States.
Fifty years after the Roe decision, and with televised assurances from nominated Supreme Court justices that Roe was “settled law,” it was fair to think that Roe was a political football, but not something that could be wholly undone; there was not a single question about abortion during any of the five televised debates during the 2020 U.S. Senate election in Maine that Republican Sen. Susan Collins won over challengers Sara Gideon, Lisa Savage, and the late Max Linn.
Now, just a few weeks after the landmark decision that sent thousands into Maine streets to protest the loss of bodily autonomy by millions of people across the country, it is hard not to wonder: What other rights we take for granted may be at risk?
The most obvious threats involve the cases Justice Clarence Thomas explicitly suggested are ripe for overturning in his concurring opinion on Dobbs.
First, he pointed to the ease with which he was logically able to overturn Roe, saying, “The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
There he’s talking about a sentence in the 14th Amendment to the U.S. Constitution that was passed in 1868 as part of reunifying the United States after the Civil War: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” Past courts took that to mean we have certain fundamental rights that can’t be taken away without some legal process; Thomas and other conservative justices fundamentally disagree, essentially arguing the sentence is just a basic reiteration of our right to a fair trial.
He followed with this:
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
“Griswold” is a case from 1965 that determined a law in Connecticut preventing married couples from using birth control was unconstitutional.
“Lawrence” is a 2003 decision that found Texas’ outlawing of sodomy unconstitutional.
And “Obergefell” is the 2015 decision that found several states had unconstitutionally prevented same-sex couples from obtaining marriage licenses.
Could the U.S. go back to a time when states did not allow married couples to buy condoms? Where police officers could arrest people for engaging in non-procreative sex (yes, even a blowjob is “sodomy”)? Where states could convey marriage licenses to some couples and not others?
Simply put: Yes, given the current makeup of the Supreme Court, with the fewest unanimous decisions in a decade and a block of six conservative justices who seem in ideological lockstep.
And a host of other rights we take for granted may be at risk, too, like the right to educate and provide health care to our kids as we see fit, the right to not be subject to forced sterilization, and others that didn’t happen to be written in 1791 (when the Bill of Rights was ratified) or 1868 (when the 14th Amendment was added).
Jim Obergefell is certainly worried. He took his desire to marry his partner all the way to the Supreme Court and won the right to call him his now late husband, and said he is “incredibly angry.”
“I can’t think of anything better to say than that it hurts, it’s offensive, and it just angers me that there’s still such hatred toward the queer community and our marriages,” Obergefell said, speaking on the phone from his home in Sandusky, Ohio.
He’s also concerned about how arguments like Thomas’ could be used in the future.
“The thing I want people to understand from (the Dobbs decision) … is that the originalist bent of this court that says we can only interpret the Constitution as it was at the time it was written, that is a recipe for keeping us stuck 200 years in the past. When that was written, ‘We the People’ did not include women, Black people, indigenous people, and so many others. Is that really the world we want to go back to?”
“The other argument,” he continued, “that fundamental rights can only be considered fundamental if they are specifically enumerated in the Constitution … should terrify everyone who wants our country to grow and move forward and not be stuck in 1787.”
Even worse, in Obergefell’s opinion, “if we can’t rely on precedent,” like the Roe case decided 50 years ago, “then no rights are secure and our entire nation can be upended by nine people – unelected people – who do not answer to the people of the United States. They can ignore any precedent that they want and that leads to disaster for this nation.”
‘Legal arguments still matter’
Maine lawyer Mary Bonauto, however, who represented Obergefell in front of the Supreme Court justices and who has long served as the Civil Rights Project director at GLBTQ Legal Advocates & Defenders, said she is “not going to be that categorical about it. I think legal arguments still matter.”
“I do think the decision in Dobbs was wrong, without a doubt, on many grounds,” Bonauto said in a phone interview. “But, having said that, every case is its own and has its own history and we’ll have to fight for all of them.”
For instance, she noted that this is hardly the first time that Thomas has called these “due process” cases into question. He and Justice Samuel Alito made similar arguments against Obergefell in an opinion released when the Supreme Court declined to hear a case involving Kentucky election clerk Kim Davis and her refusal to issue marriage certificates to same-sex couples.
“It would be one thing,” Thomas wrote at that time, “if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the court forces that choice upon society through its creation of atextual constitutional rights.”
That Thomas was not joined by other justices in his “due process” argument in the Dobbs case might indicate he continues to be on an island with his disdain for these cases and that he doesn’t necessarily have support for his arguments against them.
Further, Bonauto noted, these cases don’t all rely on the same arguments.
“The marriage equality ruling didn’t even cite Roe,” she said, and focused more on the 14th Amendment’s “equal protection clause,” which says an individual state cannot “deny to any person within its jurisdiction the equal protection of the laws.”
The court held in Obergefell, Bonauto said, “that if you denied same-sex couples the right to marry, it subordinated us. Your family can’t be without access to marriage.”
In fact, the right to marriage is among those things the Supreme Court has already held as a fundamental right under what’s known as the “privileges and immunities clause” of the 14th Amendment, which says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
It has been taken to mean, Bonauto said, that there are some “liberties that should belong to all of us, and those are considered fundamental rights, and they’re not supposed to be subject to elections or popularity contests.”
Of course, in the Dobbs decision, she noted, “the court said, ‘abortion was one of those (fundamental rights), but not anymore. We were wrong. And we’re going to leave this up to local officials.’ That’s exactly the antithesis of a fundamental right.”
It’s that kind of thinking by the 6-3 majority of the court that has Obergefell particularly worried.
For instance, he noted that Thomas obviously benefits from the court’s Loving decision, where the justices decided in 1967 that a Virginia law banning interracial marriage violated both the due process and equal protection clauses. Thomas’ own arguments, however, could invalidate that ruling.
“The way I make sense of it,” Obergefell said, “is that this illogical, irrational, anti-democratic, anti-American majority believe that their interpretation of their religion takes precedence over everything else in public life. That’s antithetical to our nation’s history. People came to the New World because they were being persecuted in the Old World, and that’s why we have freedom of religion in our Constitution.
“And here we have these people who are basing decisions on their religious beliefs and their animus toward LGBTQ+ people is because their interpretation of their religion thinks we’re less than and not deserving of being treated like everyone else.”
Organize, talk, vote
Ultimately, any conversation about the Supreme Court and its willingness and ability to roll back rights comes around to what any of us can actually do about it.
People like Yale law professor Samuel Moyn have articulated ways to disempower the court, for instance by passing a federal abortion rights statute and other rights-focused laws that explicitly strip the court’s ability to invalidate them, or require a supermajority of the court to do so.
Many have talked about expanding the court, especially since the nine justices originally equaled the number of appellate courts and there are now 13 circuits. Bonauto’s GLAD has joined with Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center in endorsing the plan for expansion along with an enforceable ethics policy for the court, as well as getting rid of the filibuster in the U.S. Senate for issues surrounding court reform and voting rights (“and we don’t take that step lightly,” Bonauto said).
But the only way those reforms will happen is with House and Senate support. That’s why Obergefell and Bonauto agree about what to do: Vote.
Both of them acknowledge, however, that being urged to vote leaves some people feeling a little hollow, particularly since those who are likely to embrace the message are also likely to have voted at every opportunity in the past. So they also encourage frequent communication with representatives at every level and interpersonal conversations within the community.
“We really need to be organizing,” Bonauto said, “talking with electeds. We need to be voting and we need to be thinking about who are the candidates who really support voting, who support individual decision making over government decision making regarding our intimate lives.”
Obergefell, who’s running for the Ohio state House as a way of putting his words into action, agreed.
“Yes, it’s a broken record, but vote,” he said. “The reason we have the Supreme Court we have is that far too many people chose to sit out, or chose to lodge a protest vote. The reason we have the court we have is because of that election in 2016. Not voting has dire consequences, and we’re seeing those dire consequences.
“We have a Supreme Court that does not reflect our nation, and we have extreme-right state legislatures and a minority is in charge in so many ways, and they will do everything they can to undermine our right to vote and hold that power. The only way we can change the Supreme Court and make sure they reflect us is if we vote in every single election. I’m going to keep saying it until people understand that this is true and not voting carries a cost.”
Regardless, Bonauto said, there’s little doubt “there will be more to come. I don’t know when the shoes start dropping, but the roadmap is there if the court wanted to look at those rights: 1791 and 1868. It’s our job to make this more complex – or maybe it’s just simple. If people could recognize that even in the early 1800s, (judges) were saying that this is a Constitution for the ages, that the framers of the Constitution interpreted this as something to endure for ages to come, then it’s only going to endure if it really manages to lift up those promises of equality and liberty in changing times.”
It’s a tough line to walk, she admitted, letting people know these rights are in danger, but not completely doomed.
“I want people to feel secure in the sense that we’re right, but boy is it going to be a fight,” Bonauto said. “It’s a fight that we thought we wouldn’t have to have again, but we are ready for it.”
Sam Pfeifle can be reached at [email protected].