Not so long ago, losing the basic right to control their bodies and their destiny was unthinkable for millions of American women.
But Friday’s Supreme Court ruling overturning Roe v. Wade has made that a reality. After decades of decisions gradually expanding Americans’ rights, the court now has a majority of judges willing to use their power to rob personal liberties.
That means our elected leaders must anticipate more unthinkable decisions from this right-wing court in the years to come — and take action now to protect Americans’ rights. Congress must quickly pass legislation that ensures Americans have the right to access contraception, engage in consensual same-sex intimacy, and marry a same-sex partner to prevent the court from stripping those rights, too.
Americans have these rights today because of Supreme Court decisions over the past several years based on the idea that the constitutional right to liberty is intertwined with the right to privacy and autonomy over intimate choices. That was the basis on which abortion rights rested for nearly 50 years, until a majority of judges ruled that was no longer the case.
Those justices insist that Roe’s overthrow, as Judge Samuel A. Alito Jr. wrote for the majority, “affects the constitutional right to abortion and no other right.” They’re telling the public not to worry about other privacy rights associated with Roe’s deletion — that we’ll still be able to get birth control, engage in intimate relationships with someone of the same sex, or that person to marry who we are love.
But Judge Clarence Thomas’ approval gives us cause for concern. He wrote, “In future cases, we should reconsider landmark decisions” that gave Americans constitutional rights to contraception, same-sex intimacy and same-sex marriage, arguing that the court should overrule “those demonstrably flawed decisions.”
Thomas could be an outlier. He may not be able to convince four colleagues to join him in his bizarre crusade to regulate what adults do in the privacy of their own bedrooms and destroy women’s ability to control every aspect of their reproductive lives.
But maybe Thomas is just the only judge willing to put this vile idea down in writing. Other justices who joined him in overthrowing Roe eventually testified before the Senate that they respected his precedent. Until apparently they didn’t.
The liberal judges who lost in the Dobbs vs. Jackson Women’s Health Organization clearly believe that the conservative majority has intentions to limit other constitutionally protected rights and freedoms. “No one should trust this majority to be done with their work,” said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan in dissent.
The right to abortion is “interconnected with other established freedoms affecting physical integrity, family relationships and reproduction,” the dissent said, including the right to same-sex intimacy and marriage, and the right to purchase and use contraceptives. “They are all part of the same constitutional fabric, protecting autonomous decision-making about life’s most personal choices.”
Reversing Griswold v. Connecticut, the landmark 1965 ruling that found the Constitution protecting the right of married couples to buy and use contraceptives, seems as absurd as abolishing a woman’s right to vote. (A later court decision extended the right to unmarried couples.) Women and girls have built their lives around the ability to use contraception to control the risk of pregnancy. According to a study by the Guttmacher Institute, 88% of sexually active women used a contraceptive method in 2016.
But given Thomas’s ominous words and Roe’s demise, why shouldn’t we be concerned that the constitutional right to contraception could also be pushed down the path to obliteration?
In fact, a number of states already have some contraceptive restrictions in place, most of them whether government subsidy programs can subsidize certain types of contraception. Texas refuses to use its state family planning funds for emergency contraception. North Dakota will not subsidize the removal of an IUD. These limitations on birth control methods are based on the assumption that some forms of birth control work like abortion, which is incorrect.
The possibility for states to impose further restrictions speaks in favor of a national right to contraception.
Likewise, we must strengthen the protections of same-sex relationships so that people do not lose the freedom to marry depending on the whims of the five judges and the policies of the state in which they live. All Americans who value equality should be concerned that Thomas cited Lawrence vs. Texas, which protects the right to same-sex intimacy, and Obergefell vs. Hodges, which protects the right to same-sex marriage, as among the “mistakes” that he wishes to see suspended.
There is little consolation in the Conservative judges’ claim that Roe’s ouster has had no impact on other rights.
Americans need an insurance policy to defend our rights against a court that doesn’t keep up with public opinion, stuffed with judges who think life today should be governed by what was lawful in the 19th century when women were forbidden to vote. This insurance policy is in our federal laws. Of course, a hostile Supreme Court could one day overturn legislation passed by Congress. But elected lawmakers must do everything in their power to protect Americans’ rights in the face of an unprecedented loss of liberty and enforce protections we’ve taken for granted.
https://www.latimes.com/opinion/story/2022-06-28/editorial-congress-should-protect-rights-to-contraception-and-same-sex-relationships Editorial: Congress must protect rights to contraception and same-sex relationships