After leaked documentation indicated the U.S. Supreme Court is on the brink of reversing the landmark Roe v. Wade abortion-rights decision, experts say the case could be just the first in a series of challenges to the right to privacy.
Nicole Clegg, senior vice president of public affairs for Planned Parenthood of Northern New England in Portland, said her organization has been “talking and thinking about this over a year,” since the political leaning of the Supreme Court shifted.
But over the past few years, she said, the court’s conservatives have made it clear this is the direction they wanted to go on Roe.
“It’s shocking,” she said. “It’s devastating, it’s hard to see our worst fears confirmed.”
While a final decision like this clearly would impact the right to abortion and self-determination, Clegg said, it also would open up the discussion on access to birth control. She said states are also trying to ban abortion at the moment of conception.
“It’s far-reaching for sure when it comes to reproductive health care and reproductive autonomy,” she said. “It’s very concerning with people losing the right to abortion, but also losing their right to avoid pregnancy when they want to.”
There are already more people traveling to Maine from states like Texas to have access to care, Clegg said, and if Roe is overturned it would see even more. She said a concern is what this will do to the “ecosystem of sexual and reproductive healthcare” – if more people come to Maine for abortion care, Clegg said, Planned Parenthood’s ability to offer other in-office services would probably suffer.
As a result, the organization is prepared to increase its direct-to-consumer medicated abortion service.
“We can take comfort in the laws we have in Maine and believe Mainers will have safe and legal access, but we can’t ignore the impact on the rest of the country,” Clegg said. “We’re all American. Making sure we’re doing our part is critically important.”
Other decisions at risk
Dmitry Bam, vice dean and provost of the University of Maine School of Law in Portland, said the leaked draft opinion written by conservative Justice Samuel Alito and published by Politico illustrates that there aren’t many rights explicitly spelled out in the U.S. Constitution.
Beyond the Bill of Rights, which enumerates rights such as free speech and the right to bear arms, many rights affirmed by the courts since the 1950s and 1960s are implied and “have been couched with the due process clause.”
Bam, a constitutional law expert, said that like Roe, they boil down to privacy and include the ability to use contraception and the right to same-sex marriage.
“The analysis could be used to question any of those earlier decisions,” he said, although that could be a challenge for the court since even the leaked draft opinion acknowledges there are some rights that are implied in the Constitution.
“Just because you can’t find the word doesn’t mean it doesn’t exist,” Bam said. “Some things have so much history they could be fundamental.”
Rights like same-sex marriage and access to contraception may also be harder to overturn for practical reasons, he said.
To begin with, countless marriage licenses have already been issued, and it would seem unlikely conservatives could get the five votes needed to overturn it. The right to use contraceptives has “basically no chance” of being overturned, Bam said, because regardless of legal analysis the complication would be the public outcry that follows, and “no state would really pass it or enforce it.”
Nonetheless, overturning Roe would be a radical step toward the court saying Americans don’t have an explicit right to privacy, even though many experts and judges over the past several decades have believed it is an implied constitutional right.
In Griswold v. Connecticut, the Supreme Court ruled married couples had the right to purchase and use contraceptives without government restriction. The opinion said the right to privacy was expressed and protected by several constitutional amendments.
Bam said Alito may be trying to “leave the door open” to reversing some decisions, but again, he could only do so with the five votes needed for a majority.
He said it comes down to “how close of a hook you need (to the right) in the Constitution.” Justices like Alito and Clarence Thomas, Bam said, would demand much more of a textual connection or a long, unbroken history of something being recognized as a right, and could go back to the founding of the country or the Civil War-era 14th Amendment.
“If you’re looking for that, many of the rights now recognized won’t have that,” Bam said. “So it’ll come down to: How do you define the right in question?”
Blaine House consequences
Following publication on May 2 of the leaked draft, hundreds of protestors rallied the next day in downtown Portland. One target of the protest was U.S. Sen. Susan Collins, whose votes to confirm the justices nominated by former President Donald Trump helped create the conservative majority.
While Republican Collins in a statement said Justices Brett Kavanaugh and Neil Gorsuch may have privately misled her into thinking they wouldn’t vote to overturn Roe, she also later said she would not support the Women’s Health Protection Act, which would codify the right to seek an abortion. Democrats planned to bring the legislation to a Senate vote this week.
Gov. Janet Mills, a Democrat, said in a radio address she intends to continue fighting for the reproductive rights of women and preserve access to reproductive health care going forward.
Without Roe, Bam said, each state could pass its own abortion rules. He said the question at the federal level is whether elected state officials have the authority to circumvent the high court’s expected decision.
“If there’s the political will to get that done, surely a federal law could do something similar to the Supreme Court decision,” he said.
But is there enough political will at the national level to get that done? Bam said while public opinion shows very little support for overturning Roe, the current makeup of Congress makes federal action unlikely.
“Looking to the implications,” he said, “it will make the political battles a lot more prevalent.”
Clegg said overturning Roe would mean this becomes a state-by-state fight, and while Maine has laws in place affirming women’s right to choose, laws are subject to reversal – which is why the candidates elected to serve in state government will determine people’s lives. She said there is a clear distinction between Mills and former Gov. Paul LePage, who will challenge Mills in November.
“We have experience and know what is possible,” Clegg said. “Without Roe what would be the limit? There are very real consequences for who is in the Blaine House and the state Legislature.”
But even in a city as progressive as Portland, there are still those who oppose abortion. A group of Christian protesters, most of whom declined to be identified, gathered in Monument Square last Friday, just paces from Planned Parenthood’s downtown offices.
Several of them came from New Hampshire and identified themselves as part of a missionary group that protests abortion every Friday in Portland, and said the possible overturning of Roe had nothing to do with them being there. One woman said she thought the leak was a deliberate effort to “inflame people and change the focus of things going on.”
John Andrade, a member of the group who used a microphone and speaker to engage passersby, said “we get people angry who want to see the killing of children in the womb,” and claimed people occasionally yelled profanities at them.
“They love to see the death of humans,” he said, comparing proponents of choice to those who enslaved Black people or killed Jews in the Holocaust.
As he spoke, a car passing by slowed down and a young woman leaned out of the back window and screamed at the protesters.
“Drive away, demon,” Andrade responded.
“Abortion is murder,” he announced to the almost empty square. “If abortion isn’t murder, then absolutely nothing is murder.”