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The fall of Roe v. Wade now threatens other rights

Supposedly this Supreme Court decision is only about abortion. But there are major reasons to doubt that claim.

Abortion-rights activists react after hearing the Supreme Court decision Friday.Jacquelyn Martin/Associated Press

Nearly 20 years ago, when the Supreme Court struck down a Texas law criminalizing same-sex intimacy, the majority opinion included a disclaimer. The justices promised that the decision in Lawrence v. Texas was a narrow one, not a sign that the court intended to recognize a right for same-sex couples to marry. Eventually, though, it did just that.

Today, the court’s conservative supermajority wiped away abortion rights and made a similar promise on the side that the decision was intended to be interpreted narrowly. This decision, the majority opinion vows, is just about abortion. But one member of the majority, Clarence Thomas, suggested that other rights could now be called into question. And in truth, other rights seem safe only if — as Antonin Scalia, the conservative judge who would have delighted in the overturning of Roe, put it two decades ago — “one entertains the belief that principle and logic have nothing to do with the decisions of this court.”


The court’s decision in the case in question, Dobbs v. Jackson Women’s Health Organization, sets out a framework for the recognition of any constitutional right: It says these rights must be deeply rooted in history and tradition. This is a particular vision of history — one that does not make room for change over time, one that privileges the views of those who were in power at the time the relevant part of the Constitution was written and ignores the beliefs of others, like women, who were not allowed to vote when the 14th Amendment was ratified. (The 14th Amendment forbids the states from depriving any person of “life, liberty, or property, without due process of law” and from denying anyone equal protection under the law.) If the court is serious about its approach, then there is no reason to think that the justices will hold back from revisiting cases on same-sex marriage, same-sex intimacy, or contraception. Justice Samuel Alito, the author of the court’s current majority opinion, has made these arguments before — and he’s done so recently, denouncing the court’s 2015 decision on marriage equality.

There are legal distinctions to be drawn between the abortion ruling and what may come next. The court emphasizes the unique value of fetal life — a conclusion that will supercharge efforts to convince the court that any abortion violates fetal rights and is unconstitutional — and the opinion suggests that no other constitutional right involves the taking of life. And some people will argue that abortion differs from marriage when it comes to who makes use of the right. Abortion, the argument goes, rarely involves advance planning, while marriage affects a variety of property rights and the status of children.


There also may simply be crucial political differences between abortion and other rights. Perhaps support for birth control or marriage equality is so strong that the court’s conservative majority will think twice before revisiting either one. Not even red states may have the political appetite for laws banning birth control or stopping same-sex marriage. Polls suggest that support for same-sex marriage has grown, after all, while support for legal abortion has remained constant. Even those in favor of legal abortion have criticized the legal logic in the 1973 Roe ruling. And the conservative legal movement has been laser-focused on the elimination of Roe since the 1990s. No other Supreme Court decision has provoked the same disgust on the American right or among right-wing lawyers.


Or so the argument goes.

The problem is that it is not clear where states will draw the line between abortion and contraception. During fights about the contraceptive mandate in the Affordable Care Act, many opponents of abortion denounced the Obama administration for forcing employers to go against their religious beliefs to subsidize contraceptives that they believed to be abortion-inducing drugs. Whether IUDs, emergency contraception, and other medications qualify as abortion has been debated for decades.

There’s also little solace for supporters of same-sex marriage in the suggestion that the court would wish to avoid causing upheaval by eliminating that right. The Dobbs ruling demonstrates that the court is hardly worried about the political or cultural upheaval of erasing a right that has been recognized for 50 years. The court also expresses a belief that once people learn that Roe is overturned, they will adapt. Surely the same justices might believe that Americans could simply adjust if marriage for same-sex couples ceases to be available across swaths of the country.

The political distinctions between abortion and other rights are more complicated. Many Americans do think abortion is different. Polling on the morality of abortion shows that Americans are divided and hold complicated views about the procedure. But the difference between abortion and same-sex marriage can be overstated. Sure, majorities now support same-sex marriage. Even more oppose criminalizing same-sex intimacy. But a clear majority opposed overruling Roe too. And this court has declared that it will not be guided by popular opinion.


What about the argument that the reaction to Roe was different — or that the movement mobilized against it was different? Some will argue that the response to Roe was unique in that it created the “pro-life” movement, inspired the religious right, and launched the culture wars, while the opposition to Obergefell v. Hodges, which legalized same-sex marriage nationwide, has not been nearly that consequential.

Roe alone did not bring the pro-life movement into being, much less the culture wars. But this argument ignores the reality that the backlash to Roe took months or even years to develop. The antiabortion movement was active before Roe, but it took time for the movement to gain a powerful partner in the Republican Party. Not until the late 1980s did the antiabortion movement find influential allies in the conservative legal movement and the Federalist Society. Those who say they can predict what red states will do next — or how conservative movements will mobilize in the future — have no reason to be so confident.

The court has opened a new chapter in the history of the nation’s approach to fundamental rights, and no one knows where it will lead — or when it will stop. Just a few years ago, few would have predicted that the court would have reversed Roe so quickly — or in such a divisive way. Those who tell us not to be worried about other rights have been wrong before. Ask yourself whether you can believe them now.


Mary Ziegler, a professor of law at the University of California, Davis, is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”