AUSTIN (KXAN) — Less than a week after the Supreme Court overturned the landmark Roe v. Wade ruling protecting federal abortion access, attention has turned to which potential rulings could be revisited next.
While Roe focused specifically on federally protected abortion access, one Supreme Court justice voiced his support of reanalyzing other landmark rulings. In a concurring opinion written by Justice Clarence Thomas, he invited future revisits to Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges, which granted protections for contraception access, same-sex intercourse and same-sex marriages.
“He has a very distinctive view of the narrowness of those interests, a view which is not shared by his colleagues,” said Lawrence Sager, a professor at the University of Texas School of Law. “I think other liberty interests, like contraceptives and same-sex marriage, are in serious jeopardy.”
However, with Thomas’ opinion comes room for nuance, Sager said, as he was the only justice to sign off on his concurring opinion. None of the justice who sided with the majority opinion to overturn Roe’s ruling signed their agreement on Thomas’ concurring view.
What sort of precedent could Roe’s overturn have on future court challenges?
While Politico’s reporting on a leaked Roe overturn draft in May minimized some of the surprise from Friday’s ruling, Sager said there is still a significant level of shock value that comes with a nearly 50-year-old precedent being overturned.
“This is a court which has been, individual justices of which had been signaling discomfort and dissatisfaction with Roe in large and small ways for decades,” he said, adding, “it’s breathtaking. You know, we have had half a century of women enjoying a certain set of judgments about their lives that seemed so settled and so important.”
Post-Roe, what other potential legal challenges could come in the future?
Four justices need to sign off to bring a case before the Supreme Court, Sager said, which would require other members of the majority to stand alongside Thomas. That doesn’t mean there won’t be suits brought at lower court levels challenging these landmark rulings on contraception and same-sex relationships, he said.
“We know there is one justice hungry for these cases, and that’s Thomas. And the world will conspire to serve up facts, situations that raise these issues,” Sager said. “I think we can be confident of that. So these cases could well come to the court, and although there is clear space for this court to draw a line between abortion rights and these other cases, there’s no guarantee that it will honor that one.”
And what is that clear line? All of these cases’ rulings link back to the 14th Amendment.
What are the links between Roe’s overturn and access to contraceptives or same-sex relationship protections?
In the Supreme Court’s overturning of Roe, Sager said the court looked at two key features: whether this federal right to an abortion was tied to history and if it was tied to history in a defined, fact-specific way.
“Instead of looking to history for basic values and for the basic scope of liberty … this majority looked distinctly and precisely to history, and it was on that basis that it found no grounds for thinking that abortion was a right contained within the due process clause of the 14th Amendment,” he said. “So now the problem is, what about these other liberty interests: the interest in contraceptives, the interest in same-sex marriage as a liberty interest?”
Contraception access and same-sex relations aren’t the only rulings rooted in the 14th Amendment. Another possible court challenge could come in form of parents’ ability to make choices in their children’s education. Those are rulings made on the basis of the due process clause, which restricts the state from depriving “any person of life, liberty, or property, without due process of law.”
But with Thomas’ concurring opinion, public analysis has centered on contraception and same-sex relationships and how they might relate to the present court’s stance on abortion.
With abortion, there is the viewpoint it involves taking a human life, while others believe it is a pre-human, pre-born entity. In overturning Roe, the majority argued its due process argument had a weak foundation in history.
Meanwhile, the Obergefell ruling legalizing same-sex marriage varies slightly, in that it was a two-part decision made based on the 14th Amendment’s due process and equal protection clauses. Lawrence’s ruling is also rooted in the equal protection clause, which stipulates individuals can choose who they can be sexually active with and what acts they can perform.
“All of that is, to some degree, in jeopardy along with Obergefell,” he said.