An apparent US Supreme Court decision to strike down abortion rights could lead to broader threats to some types of contraception and LGBTQ+ rights, including same-sex marriage, Berkeley legal scholars say.
In interviews Tuesday after the high court’s draft decision emerged, Berkeley legal experts said if the court reverses its landmark Roe v. Wade, the damaging impact on women’s health and working lives will be profound. The effects will fall hardest on low-income women, especially women of color, said Professor Khiara M. Bridges, an expert in reproductive law and justice.
“In states where abortion is illegal, privileged people will have relationships with medical providers who will be able to perform an abortion on them despite the law,” Bridges said. “Or they will travel to states where the procedure is still legal. The marginalized people are the ones who will be forced to carry unwanted pregnancies to term or terminate pregnancies in unsafe conditions. This was true before Roe aired in 1973. And it will be true after Roe officially drops this summer.”
But if Roe is overturned, the Supreme Court and democracy itself would be damaged, the academics said. Many people would believe that the court’s dominant bloc of judges was driven by conservative political and religious motives to reshape the American landscape for a variety of legal rights.
Recent polls show that as many as 70% of Americans believe the court should not overturn Roe v. Wade, and a poll last fall also showed only 40% of the public approve of the court’s performance, an all-time low, the Berkeley Law Dean said. Erwin Chemerinsky.
If the court’s draft ruling stands, as expected, “the American people will perceive this not as a ruling on the law, but as a right-wing policy that opposes abortion rights,” Chemerinsky said. “This will be one more blow, perhaps a devastating blow, to the legitimacy and credibility of the Supreme Court.”
Berkeley law professor Kristin Luker, a legal scholar and sociologist who has written about reproductive rights since the 1970s, said the decision to overturn Roe would be “historic,” as if the court had decided to overturn the landmark Brown case. against the Board of Education. of the Topeka decision that prohibited racial segregation in public schools.
With Judge Samuel Alito’s draft decision on abortion, “it is as if the Supreme Court said Brown v. Board of Education it was wrongly decided, and that they were going to turn the matter over to the states,” Luker said. “I think this is the civil rights issue of our era.”
Was Roe “egregiously wrong from the start”?
Nearly 50 years ago, in January 1973, the Supreme Court said in Roe v. Wade that the fundamental right to privacy was embedded, though not explicit, in the 14the Amendment to the United States Constitution. Although the Constitution does not mention abortion, the court found in a 7-2 vote that a woman’s decision to have an abortion was protected under that right.
The court is currently focused on a Mississippi law that bans almost all abortions after the age of 15.the pregnancy week. Alito’s draft resolution could be reviewed and, at least in theory, the decision could be reversed before the final result is announced. But the leaked draft published by politician flatly rejected the court’s reasoning in Roecalling it “grossly wrong from the start”.
Where previous courts have viewed the Constitution as a living document, subject to legal interpretation as time passes and conditions change, Alito’s draft sees the Constitution as a literal authority that is far less subject to interpretation over time.
Alito “says that a right should be protected by the Constitution only if it is found in the text, was clearly understood as part of the original meaning of the Constitution, or is supported by unbroken tradition,” Chemerinsky explained. “Abortion is not in the text. It was not part of the original meaning of the Constitution or the 14th Amendment, and there was no long tradition of protecting the right to abortion. Therefore, Roe v. Wade was wrong and should be overruled.”
However, that is not how previous justices have viewed the Constitution.
“For the past century,” Chemerinsky said, “the Supreme Court has protected rights such as the right to marry, the right to procreate, direct custody of children, the right to keep the family together, to control the upbringing of children, to purchase and use contraceptives, the right of consenting adults to engage in same-sex sexual activity, the right of competent adults to refuse medical treatment.
“None of these rights is in the text of the Constitution,” he added. “If Judge Alito’s methodology is applied, all these decisions are constitutionally suspect.”
If such legal protections are withdrawn, Bridges suggested, people who have needed the protection of the courts in the past will once again become vulnerable.
“Marginalized people – the poor, people of color, youth, trans people, people with disabilities, people who are survivors of domestic violence, people who are undocumented – are the ones who will be hit the hardest by a Supreme Court decision to overturn Roe. ,” she said.
An abortion ruling with an impact far beyond abortion
The scholars cited several areas that could quickly come under legal and cultural pressure if Roe is overturned.
Contraception: If states can ban abortion, based on the premise that life begins at conception, then contraceptives like the morning-after pill or even the intrauterine device (IUD) could be called into question. In effect, they terminate a pregnancy by preventing a fertilized egg from embedding in the woman’s uterus.
Same-sex marriage: The high court affirmed the right of same-sex couples to marry just seven years ago, in the 2015 case Obergefell v. Hodges. The ruling has been extremely unpopular with some conservative Christians, even when it is accepted by the public.
Chemerinsky predicted that the court “will severely cut rights related to same-sex marriage, even if it doesn’t strike down Obergefell.”
For example, he said, a Supreme Court case next year centers on a Colorado web designer who refused to design websites for same-sex couples, in violation of state law.
“I think the Supreme Court is going to say that companies can discriminate against same-sex weddings,” he said.
Discrimination in the workplace. If Roe is struck down, Luker said, women in states where abortion is illegal may find their job prospects limited by employers who feel they are likely to become pregnant.
“We have very good evidence that liberalized abortion not only allowed women like me to go to graduate school, law school, and professional school, but also allowed women to invest human capital in themselves and compete with others. men on equal terms,” he explained. .
But if women are more likely to get pregnant, she said, they are more likely to face a “maternity penalty” from employers who worry about their commitment to work. That can mean reduced pay and fewer opportunities for advancement.
Using case law to turn back the clock
Luker is the interim director of the Center for Reproductive Rights and Justice at Berkeley Law. In his opinion, the court and its conservative allies are trying to undo the great historical cultural changes that were set in motion by the upheavals of the 1960s.
In effect, he said, they want to elevate the ideals of heterosexual marriage, motherhood and family immortalized in black-and-white television shows of the 1950s, before the sexual revolutions that unfolded a decade later.
But that’s “a doctored idea from the past,” he said. She leads some conservative lawmakers to view pregnancy resulting from rape as an “opportunity,” and leads much of the nation to forget the sometimes grim choices women with an unwanted pregnancy once faced.
“At a certain time, if you got pregnant and you weren’t married, either the guy married you or you went to a horrible home for pregnant women who weren’t married, with enormous shame,” Luker said.
“A lot of young people who have grown up with legal abortion don’t realize what the old days were like.”