Roe’s demise paves the way for assaulting everything from same-sex marriage to contraception: journalist

When Sen. Susan Collins of Maine voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court in 2018, the moderate conservative and pro-choice Republican insisted that he wouldn’t vote to overturn Roe v. Wade and was a firm believer in stare decisis — a legal term meaning respect for precedent. But if Roe v. Wade is overturned — which appears almost certain — it will be painfully obvious that Kavanaugh and other GOP-appointed justices have no qualms about overturning longstanding precedents. And journalist Jay Michaelson, in a biting op-ed published by the Daily Beast on May 3, lays out some reasons why the demise of Roe v. Wade is bad news not only for abortion rights, but also, for everything from same-sex marriage and gay rights to contraception.

On Monday night, May 2, Politico reported that according to a leaked initial draft opinion written by Justice Samuel Alito, the U.S. Supreme Court has voted to overturn Roe v. Wade. Alito writes, “Roe was egregiously wrong from the start…. We hold that Roe and (Planned Parenthood v.) Casey must be overruled.”

Roe v. Wade, handed down by the Burger Court in 1973, was a right-to-privacy decision — not unlike the Warren Court’s 1965 ruling in Griswold v. Connecticut, which struck down a ban on contraception for married couples. Other right-to-privacy decisions have ranged from 2003’s Lawrence v. Texas (which invalidated a Texas sodomy law as unconstitutional) to Obergefell v. Hodges, the 2015 ruling that legalized same-sex marriage nationwide.

Michaelson warns that if Roe falls, expect other right-to-privacy rulings to fall as well.

“If this draft becomes the majority opinion, we’ve got the end of Roe v. Wade,” Michaelson writes. “But that’s only the beginning of the end. If the reasoning of the draft becomes the majority opinion — and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices — then it applies equally to Obergefell v. Hodges, which held that all marriages, including my same-sex one, are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity, including same-sex, was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.”

Michaelson continues, “All those cases held that certain specific rights to bodily integrity and privacy, though unmentioned in the Constitution, are implicit in the broad guarantees of the 14th Amendment, as long as they were part of the ‘concept of ordered liberty.’ It’s not part of the concept of liberty to police a woman’s uterus or a gay man’s bedroom. There are limits to government power, and no process can be ‘due process’ if it transgresses those limits.”

Michaelson notes that Alito, in his argument for overturning Roe, “specifically mentioned Obergefell and Lawrence as examples of the same faulty reasoning behind Roe.”

“So, in case folks weren’t listening when all those legal Cassandras warned that Roe was going to be overturned, please listen now: Gay marriage is too. Within a year or two. Unless another justice leaves the Court, the constitutional right to marriage for all is going to be overturned. The only question is whether Republicans will have a veto-proof majority, or the presidency in 2024, to ban both abortion and gay marriage anywhere in the nation.”

The tone of Michaelson’s op-ed is generally pessimistic, lamenting that the damage is done and that he expects the Supreme Court’s hard-right majority to inflict a lot more damage in the future.

“So, what can liberals do now? Not much, really,” Michaelson writes. “It’s too fucking late. What liberals should have done in 2016 was ensure that a Democrat won the Oval Office. They should have arm-twisted their Jill Stein friends, and let their Republican relatives know that, hey, women are people and shouldn’t be forced by the government to carry a fetus — or a blastocyst, or an embryo — inside of their womb. And that those very rights were at stake in 2016, and again in the Senate elections of 2018, and again in 2020, and again in the Senate elections this year.”