Birth Control and Gay Marriage Could Be Next If Roe v. Wade Falls

The Supreme Court is now on the verge of vaporizing the national right to choose abortion, a move that could soon endanger a whole host of hard-won rights. 

Overturning Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, would radically reshape abortion access in the United States, likely leaving roughly half the country without legal abortion. But, legal experts believe, the end of Roe isn’t the only threat posed by the draft opinion. If it becomes the Supreme Court’s final word, they believe that the right to contraception and the rights to same-sex marriage and intimacy, to name just a few, could soon be on the chopping block.

“This is potentially the first of many decisions where the Supreme Court rolls back fundamental civil rights that have been built up by the court and by Congress since the civil rights movement,” said Carrie Baker, director of the Program for the Study of Women and Gender at Smith College. “So everything’s up for grabs, in my mind. Any sort of civil rights or constitutional rights that people have won over the last 50 years is open for discussion. I mean, why not?”

In Roe, the justices ruled the right to an abortion arose out of a right to privacy, which isn’t explicitly spelled out in the Constitution but rather assembled through the guarantees of the 14th Amendment. Over the decades, the Supreme Court has built a Jenga tower of legal reasoning around the existence of that right to privacy and how rights may be extrapolated from the Constitution. Pull out one block, like Roe, and you threaten to topple the whole thing, experts say.

“Even if you’re somebody who doesn’t care very much about abortion rights, you should be worried about what’s coming down the pike,” said Grace Howard, an assistant professor of justice studies at San Jose State University. “If your rights have not been understood as automatic for the last 200 years, or if your rights are not explicitly stated in the Constitution, this court is basically saying you do not have those rights.”

By the time of the Roe decision, the Supreme Court had already concluded that contraception should be available to married people (in 1965’s Griswold v. Connecticut) and to unmarried people (in 1971’s Eisenstadt v. Baird). In the opinion for the latter case, Justice William J. Brennan Jr. famously declared, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

This notion of a right to privacy, and the way it intertwines with the nature of liberty, also contributed to seminal victories for the LGBTQ rights movement: It was the bedrock of the 2003 Lawrence v. Texas decision, which abolished sodomy laws, which in turn led to 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. (“Sodomy” is often used as a shorthand for same-sex sex—but in reality, the word refers to any kind of anal or oral sex, meaning that states can use sodomy laws to police people’s sex positions.)

In fact, in his draft majority opinion leaked this week, author Justice Samuel Alito specifically mentioned all of these cases. He attempted to draw a distinction between those cases and Roe and Casey v. Planned Parenthood, the 1992 Supreme Court decision that upheld Roe, claiming that the other privacy cases don’t involve “the critical moral question posed by abortion”; abortion is “unique,” in Alito’s view,” because it “destroys what those decisions called ‘fetal life.’”

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Alito’s is essentially trying to argue that, by dispensing with Roe and Casey v. Planned Parenthood, the 1992 Supreme Court decision that upheld Roe, the nation’s highest court will somehow get out of the business of dictating reproductive health law to the rest of the country. But that ham-fisted attempt didn’t exactly reassure the experts who spoke to VICE News.

“Even though Alito very carefully says, ‘This is just about Roe v. Wade,’ I just don’t see how that’s possible. I think this will have farther-reaching implications than that,” said Nicole Huberfeld, a health law professor at Boston University School of Public Health. “There’s no way it won’t open the courthouse doors to further challenges related to the right to privacy and other intimate rights.”

Jessie Hill, a professor at Case Western Reserve University School of Law, called Alito’s insistence that abortion is somehow different an “afterthought.”

“That’s the only thing he really says that makes you think the other rights are not at risk. Every other piece of the court’s logic suggests that there shouldn’t be any of these rights,” Hill said. “There shouldn’t be a right to access contraception. There shouldn’t be a right to same sex-marriage, a right to refuse medical treatment, a right to procreate, like a right not to be sterilized by the government. None of those rights are in the text of the Constitution.”

“I don’t know that, in the short term, anyone is going to outlaw interracial marriage, but there’s no reason, on this logic, that they couldn’t,” Hill added. (Huberfeld disagreed that Loving v. Virginia, the 1976 Supreme Court case that obliterated laws against interracial marriage, was endangered by Alito’s draft opinion alone, because the case is protected by other parts of the Constitution.)

But even if no one ever tries to take down another Supreme Court privacy right case, Alito’s draft could have devastating consequences to rights beyond abortion even on its own. 

The Supreme Court doesn’t even need to officially overturn Griswold and Baird in order to choke access to contraception. Anti-abortion activists frequently believe that forms of hormonal birth control, like IUDs, and emergency contraception, like Plan B, cause abortions. (They don’t.) If Roe falls and around half of the United States outlaws abortion, state legislators may attempt to argue that having an IUD constitutes having an abortion and thus make them illegal.

“Simply by criminalizing abortion, they may be sweeping in some birth control anyway,” Mary Ziegler, who studies the legal history of reproduction at Florida State University College of Law, told VICE News last December. “The same goes for some aspects of infertility treatment.”

Alito’s opinion argues that the right to abortion is not rooted in the United States’ “history and tradition.” He also repeatedly cites Sir Matthew Hale, a British 17th-century jurist who is typically credited with originating the common law idea that women are literally their husbands’ property. According to Hale’s conception of women’s rights, for example, marital rape does not exist. (Thanks to Hale’s legacy, many states still have laws that treat certain kinds of marital rape as less serious.)

Alito’s opinion doesn’t go so far as to try to argue that fetuses count as people—an idea that lies at the heart of anti-abortion logic, but one that would radically rewrite vast swaths of U.S. law and potentially endanger pregnant people’s rights. Already, experts say that prosecutors who want to criminalize pregnant people will look for laws that are elastic enough to fit the supposed crime. 

Since 1973, there have been more than 1,600 cases where women have been “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons,” according to a legal brief filed to the Supreme Court by the nonprofit National Advocates for Pregnant Women, for the very same case that Alito is now writing on.

By trying to leave states to their own devices when it comes to reproductive rights, Alito’s draft opinion may give a green light to state governments that want to curb the rights of pregnant people, Hill said. 

“States are gonna be really emboldened to either explicitly pass laws criminalizing certain conduct during pregnancy, or prosecutors [will be emboldened] to go after that conduct,” she said. “I don’t see what’s to stop them.”