If Roe Falls, Same-Sex Marriage Could Be Next

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In the past several weeks, Republicans in Alabama, Missouri, and Georgia have pushed through a series of horrifying bills that effectively ban abortion and criminalize the procedure, a bald attempt to trigger a legal challenge with the hope of eroding or outright overturning Roe. While the bans are particularly extreme, the reality is that these bills, and others like them, are a culmination of a decades-long strategy to restrict abortion access in America—one that has already largely succeeded.

How did we get here? Carol Sanger, the Barbara Aronstein Black Professor of Law at Columbia Law School and author of About Abortion: Terminating Pregnancy in the 21st Century, traces the slow dissolution of Roe back to the 1992 Supreme Court case, Planned Parenthood v. Casey, in which the Supreme Court affirmed the basic right to an abortion, but expanded the state’s ability to intervene in abortion decisions from the moment of conception onwards in the name of protecting a woman’s health and the “potential life.” Roe established a right to abortion until the point of fetal viability, generally determined at 24 weeks of gestation. But Casey “made a new test,” allowing for regulations on abortion before fetal viability so long as the restrictions don’t create an “undue burden” on someone—a test that has been harder to meet in court.

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“Everybody thought Casey was going to be the moment that was going to overturn Roe. Rather than overturn Roe, it dismantled Roe,” Sanger told Jezebel, noting that the decision opened up a new avenue of abortion restrictions, including mandatory ultrasounds and targeted regulations on providers. “It’s much harder to get an abortion now than it was prior to Casey,” Sanger said. “To a great extent, Roe has already been dismantled.”

Republicans see an opportunity under the Trump administration to push unconstitutional legislation forward with the hope that a conservative Court will take up Roe. But the Center for Reproductive Rights, which is challenging Georgia’s recent heartbeat bill, Missouri’s eight-week ban, and will challenge Louisiana’s six-week ban, if enacted, does not expect these bills to be enacted as law. “Legislators who are hostile to abortion rights see this as an opportunity to get a different answer to the same question,”Elisabeth Smith, Chief Counsel, State Policy and Advocacy at the Center for Reproductive Rights, told Jezebel. But “We fully expect that none of these six-week bans will ever be enforced. No six-week ban has ever been enforced.”

The bans passed by Alabama, Georgia, and Missouri are likely too extreme to muster support from the Supreme Court. Rather, incremental restrictions like the ones Sanger mentioned—20-week abortion bans and requiring admitting privileges—are more likely laws to reach the court as a challenge to Roe. “I actually think the challenge to Roe will come with ostensibly milder measures that will let the courts find cover in seeming not to be extreme even though these laws can have the extreme effect of destroying the abortion infrastructure and cutting off access for most women,” Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School, told the New Yorker.

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These restrictions are unconstitutional because they undermine the key provision of Roe that established the right to an abortion until the point of fetal viability. But as Sanger noted, after Casey, which changed the litmus test from fetal development to an “undue burden,” it’s become much easier to impose restrictions on abortion before that 24-week mark. Upholding one of these bans would undermine the main tenets of Roe.

No one can predict whether the Supreme Court will, in fact, overturn Roe, but with the onslaught of anti-abortion legislation and a president who is stacking federal courts with conservative judges, the threat is imminent—especially if Trump gets a chance to nominate more Justices to the bench. If that does happen, abortion rights are not the only essential liberty under threat. If Roe falls, then the right to privacy over a variety of personal decisions “becomes endangered,” said Melissa Murray, law professor at New York University and Co-Faculty Director of the Birnbaum Women’s Leadership Network. “Freedom and liberty in the most intimate aspects of your life—family planning, family formation, reproduction—that becomes imperiled if Roe is imperiled.”

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The Constitution does not explicitly protect an individual’s right to privacy, but throughout history, the Supreme Court has reinforced personal liberty as implicitly protected. In 1965 case Griswold v. Connecticut, the Supreme Court ruled that Connecticut’s ban against birth control violated the “right to marital privacy,” and Roe in 1973 built on that case to the right to terminate a pregnancy.

But Roe’s impact stretches beyond the decision to have an abortion. “Roe insists that the right to privacy includes the right to terminate your pregnancy,” Murray explained, “but it’s part of this larger framework that there are these personal decisions that the right to privacy undergird and allows the individual to make those decisions without undue governmental interference.”

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According to the Center for Reproductive Rights, Roe “brought together earlier cases recognizing a range of rights—from marriage to childrearing—to show how these rights were intertwined with the right to abortion.”

“In doing so, it provided a robust framework for liberty jurisprudence that earlier cases lacked,” the report reads. “By upholding Roe’s core doctrine against subsequent attempts to overturn it, the Supreme Court strengthened the foundation for related liberty rights it would later recognize, including the right to engage in private sexual conduct and the right to same-sex marriage.”

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“Those other personal liberties prevent the government from intervening in some of the most personal, intimate decisions of someone’s life, including decisions about whether to have children, how to raise children, and even whom and when to marry,” Murray said.

As Republicans aggressively dismantle abortion rights, the Trump administration has also been targeting contraception and same-sex marriage by pushing abstinence-only education, allowing employers to opt-out of birth control coverage, and allowing health care providers to deny service to LGBTQ people. These attacks “will intensify if Roe falls,” Murray warns. “You’ll see more frontal attacks. If there is no right to abortion, how can there be a right to same-sex marriage? The same kind of liberty logic that protects a right to an abortion is the same liberty logic that protects the right to marry a person of the same sex.”

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Roe has been under threat for decades, and now stands perilously close to downfall. If it falls, Republicans will get a chance to rewrite personal liberties in the mold they see fit. They have already offered a preview of that vision, and it’s frightening.

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Prachi Gupta

Prachi Gupta is a senior reporter at Jezebel.

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