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"Not deeply rooted in the nation's history and tradition": We are living in a post-Roe world

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The Supreme Court as composed October 27, 2020 to June 30, 2022 — Photo by Fred Schilling, Collection of the Supreme Court of the United States
The Supreme Court as composed October 27, 2020 to June 30, 2022 — Photo by Fred Schilling, Collection of the Supreme Court of the United States

After over 49 years of legal precedent and numerous failed attempts to challenge and overturn it, Roe v. Wade has fallen, in a decision called Dobbs v. Jackson.

The 1973 case, which ruled that American women have a constitutional right to bodily autonomy and medical privacy, as interpreted by the 14th Amendment, has been overturned by the most conservative court in recent years.

Thirteen states have trigger laws that were already on the books, ready for Roe to be overturned. These laws have already now gone into effect, preventing thousands, including a ten-year-old rape victim in Ohio, from accessing an abortion.

Women, LGBTQ+, and BIPOC people have begun panicking, and many have taken to the streets in protest. With emotions running high, many are confused about what this decision means and what the future of the United States will look like.

Breaking with precedent
While the Supreme Court of the United States interprets the Constitution through numerous rulings each session, it's not every day the nine justices overturn such a pivotal and historic case. Despite the rarity of such a landmark decision being overturned, 2022 is not the first time the court has reconsidered Roe.

In 1992 the court heard the case of Planned Parenthood v. Casey. Twenty years after Roe, state laws in Pennsylvania were put in place to deter women in the state from seeking an abortion. Among these regulations was a 24-hour waiting period, required reading on alternatives to abortion, and mandatory notification and consent from a woman's husband.

Much like in Dobbs v. Jackson, the state laws stood in contradiction to the original ruling in Roe v. Wade, and their defenders made the argument that Roe had been wrongly decided and should be overturned. However, the Supreme Court upheld the notion of stare decisis, which is Latin for "the decision stands," a legal principle often used for a case that has already been ruled, in which a court acknowledges an earlier decision and respects the reasons given for it.

This, was not the case in Dobbs, however, and both Roe and Casey were overturned.

Photo by Jacquelyn Martin / AP  

The decision of the court was written and delivered by Justice Samuel Alito, who was appointed by George W. Bush in 2005. An early draft of the decision was leaked nearly two months earlier, but despite backlash from pro-choice advocates, much of the draft remained unchanged in the end.

Strict constructionism
Alito's primary reasoning for overturning Roe was that "the Constitution makes no express reference to a right to obtain an abortion." Like many conservative justices, Alito formed his argument based on strict constructionism, a philosophy that argues that the Constitution should be interpreted exactly as it was written. Using this approach, Alito argued that previous interpretations that held abortion to be a form of bodily autonomy protected under the "liberty" clause of several amendments were too large of a stretch.

Alito wrote, "The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."

While the court correctly points out that abortion cannot be found in the original text of the Constitution, pro-choice advocates are quick to remind both that no rights for women can be found in the original document, and it wouldn't be until 1920 that the 19th Amendment would provide women with representation in the form of suffrage (the right to vote).

"Several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is a part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments," Alito conceded before continuing.

He acknowledged that some may argue that laws banning abortion are a form of sex-based discrimination, which the court previously found unconstitutional under the 14th Amendment. However, he ultimately decided that just because the procedure only affects "women," the outlawing of it does not constitute discrimination.

"Others have suggested that support can be found in the Fourteenth Amendment's Equal Protection Clause, but that theory is squarely foreclosed by the Court's precedents, which establish that a state's regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications."

"The 'goal of preventing abortion,' does not constitute 'invidiously discriminatory animus' against women," Alito added.

"History and culture"
One of the main arguments the court made in the Dobbs ruling was that for a right to be inferred, though not explicitly stated in the Constitution, it must have strong ties to the history and culture of America. Of course, this argument is full of flaws, as American history and culture have been riddled with atrocities such as slavery, genocide, and unlawful internment based on race.

"Our decisions have held that the Due Process Clause protects two categories of substantive rights," wrote Justice Alito. "The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government... but this Court has held that the Due Process Clause of the Fourteenth Amendment 'incorporates' the great majority of those rights and thus makes them equally applicable to the states...

"The second category — which is the one in question here — comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.

"In deciding whether a right falls into either of these categories, the Court has long asked whether the right is 'deeply rooted in [our] history and tradition' and whether it is essential to our Nation's 'scheme of ordered liberty,'" Alito continued.

After delving through history with a selective fine-toothed comb, the majority determined that "The Court finds that the right to abortion is not deeply rooted in the Nation's history and tradition."

"Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion," Alito wrote. "No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single state."

Again, the evidence the court found was correct: no state constitutions mentioned any specific rights to different healthcare procedures, whether abortion, amputation, or chemotherapy. While many would argue that this is because a right to make personal decisions regarding an individual's healthcare falls under the guise of "liberty," which all Americans are supposedly granted, Alito stated that this is not the case.

"Guided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty.' When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion."

Furthermore, the assertion that abortion was illegal in some form in nearly every state could still be correctly made even after Roe, as every state, including Washington, had enacted limitations to late-term abortions.

The justices did not just stop with an analysis of the 20th century, however. They continued their journey through history, going back far beyond the Constitution, before the Revolutionary War, and even before the horse that would one day become George Washington's teeth was born.

"At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages," Alito wrote, referencing a set of old English laws that existed far before the Constitution was conceived.

While the court did not reference any laws from the same period that existed on American soil, such as laws of sovereign Native American tribes that did acknowledge and allow for abortion, it did reference the same doctrine that determined all women to be the property of their husbands and called on witches to be burned at the stake.

To reiterate his finding that abortion has been illegal in certain parts of the United States since far before the country's independence, Alito proceeded to list every single law against abortion from the 17th century to the present day.

Photo by Jose Luis Magana / AP  

Is abortion body autonomy?
In Alito's final analysis, he asserted that arguments around whether or not abortion can be considered a right to bodily autonomy are a stretch.

"Finally, the Court considers whether a right to obtain an abortion is a part of a broader entrenched right that is supported by other precedents," he wrote. "The Court concludes [that] the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to the broader right to autonomy and to define one's 'concept of existence' prove too much."

According to Alito, if one is to make the argument that body autonomy includes making the personal decision to get an abortion, then other illegal acts that physically affect the body could also be interpreted as legal, even though such arguments have yet to be made. "Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like," he wrote.

Clarence Thomas concurs
One aspect of Roe's ruling that has caused many to worry is that the case drew upon the 14th Amendment, and many decisions before and after Roe have used its framework to make similar arguments, that a right to privacy is fundamental under the Constitution. Ever since the draft opinion was leaked, people have wondered if overturning Roe will open the court up to overturn these other cases.

Aware of this, Alito included a final section covering the court's tracks and seemingly protecting other rights similarly interpreted under the 14th Amendment. "The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause," he acknowledged. "The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Despite Alito's reassurance to the American people that the court will not go further than overturning Roe, fellow justice Clarence Thomas stated something very different in his concurrence.

"I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment's guarantee that no State shall 'deprive any person of life, liberty, or property without due process of law."

While Thomas echoed Alito and Kavanaugh (who also wrote a concurrence), he quickly made clear that he did not agree with all they had to say. "I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause," he said.

"As I have previously explained, 'substantive due process is an oxymoron that 'lack[s] any basis in the Constitution,'" he said, quoting himself, something he happened to do a lot in his concurring statement. "The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion."

Thomas condemned the court for the assurance that the Dobbs decision would only impact abortion, writing, "The Court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other, specific contexts. Cases like Griswold v. Connecticut..., Lawrence v. Texas..., and Obergefell v. Hodges... are not at issue... Thus, I agree that '[n]othing in [the Court's] opinion should be understood to cast doubt on precedents that do not concern abortion'...

"For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents."

Thomas' concurrence has caused many to question whether or not the court could overturn some of the other cases he had mentioned, including those dealing with the right to contraception, sodomy, and same-sex marriage, respectively.

Of course, for the court to overturn any of these cases, it would first have to take up a case that challenges the precedent set by them. Currently, there are none that appear to do so, but many conservative lawmakers are feeling emboldened to enact laws that, if challenged, could potentially overturn any of these cases.

Is birth control next?
The concern that other privacy-based cases, like the right to birth control, could be overturned similarly to Roe was a main theme in the dissent, issued by Justices Breyer, Sotomayor, and Kagan. "So, one of two things must be true. Either the majority does not believe in its reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure." The dissent notes that if a right to abortion is not considered to be a staple of American history and culture, neither is the right to contraception.

Idaho may be going in that direction. Idaho Rep. Brent Crane has proposed a state ban on certain types of contraception, including Plan B and IUDs.

Because Plan B is technically a form of emergency contraception and not an "abortion pill," a ban on the medication could constitute a "contraception ban" and ultimately challenge Griswold in the high court.

The SGN reached out to Rep. Crane, but he refused to comment on the issue. We did reach his fellow representative, Colin Nash, however, who said, "Contraception is a fundamental right that the Supreme Court has upheld for more than 60 years that has broad support among Idahoans, even those who may be opposed to abortion. It has no connection to the recent case, and it would be widely unpopular."

Nash, among other Democrats in the state, said that he is working to fight against Idaho's trigger laws and defend other constitutional rights, like the right to use contraception. "As far as what Democrats are doing, we will stand opposed to the trigger law and believe that [Idahoans deserve] a constitutional right that they have enjoyed for 50 years, and [we] believe that we can find ways to improve the lives of women and children through means that don't strip away fundamental rights."

At the federal level, the President has also responded to concerns that Dobbs could trigger more than just abortion bans. On Friday, July 1, he told the Health and Human Services Department to ensure that contraception and the oral abortion pill would remain available "to the fullest extent possible."

Photo by Jacquelyn Martin / AP  

What does Roe mean for LGBTQ+ rights?
The decision to overturn Roe has also not only led to conservatives contemplating a ban on birth control but also prompted many to strengthen anti-LGBTQ+ laws. On July 3, just days after the Dobbs decision was announced, Alabama lawmakers argued in favor of the state banning gender-affirming medical treatment for Trans youth.

Citing Dobbs, the state of Alabama has asked a federal appeals court to lift the injunction that was placed on an earlier law, which made it a felony to provide children with puberty blockers or gender-affirming hormones. The law, which was signed by Alabama Gov. Kay Ivy, sentences parents and doctors to a minimum of ten years in prison if they provide gender-affirming medication to children.

The brief submitted by the attorney general's office echoed the language of the Supreme Court's decision, arguing that transition treatments are not "deeply rooted in our history or traditions."

Southern states aren't just gunning for Trans rights, however. In Texas, Attorney General Ken Paxton announced in an interview with NewsNation that he would defend a currently unconstitutional state law against Gay sex if the Supreme Court reversed its 2003 ruling in Lawrence v. Texas, one of the cases Justice Thomas requested be reevaluated.

Aside from proposed attacks on Queer rights, Texas is also one of the states to enact the strictest trigger laws. "There's a trigger law that was already set up called the Heartbeat Act that makes it illegal to have an abortion after six weeks (believed to be the time where a baby develops a heartbeat)," said former Texas resident and Washington-based nurse Katie.

"This law also allows citizens to sue abortion clinics, as well as anyone who helps the birthing person receive an abortion. I just moved here from Texas, and while I feel thankful that Washington is a state that has not and doesn't intend to ban abortions, I'm scared for my friends and family," she continued.

Many, like Katie, are considering fleeing conservative states out of fear of getting pregnant or risking losing more rights. "Many of my friends are considering moving out of Texas," she said. "I'm also very scared of what SCOTUS is going to go after next. Right now, people are grieving the loss of their rights while also fearing that more rights will be taken away."

Next time on: The Supreme Court attacks our rights
More SCOTUS-led attacks, this time on the LGBTQ+ community, are likely. As the court's year comes to a close, it has already announced several cases the justices plan to hear in the fall. Among them is a case that touches on the legality of discrimination against LGBTQ+ people.

The case of 303 Creative LLC v. Elenis centers around Lorie Smith. Although Smith has yet to officially become a graphic designer, she launched a website advertising her services to create wedding websites for couples in Colorado. However, Smith wanted to include a notice on her website that she would not serve LGBTQ+ people.

Smith's lawyer argues that Colorado's anti-discrimination law, which states that licensed businesses must "work with all people regardless of sexual orientation," violates her First Amendment rights to free speech and religion.

So far, Smith has lost her case in both the lower court and the 10th Circuit Court of Appeals, with the latter ruling that "Colorado must protect the interests of marginalized groups under the Colorado Anti-Discrimination Act."

With the court's current lineup still stacked with conservative viewpoints, and another recent ruling in favor of a Washington public school teacher's First Amendment right to religion, it seems likely the court will rule for Smith.

"This decision does a disservice to schools and the young citizens they serve as well as to our Nation's long-standing commitment to the separation of church and state," wrote Justice Sotomayor in her dissent in Kennedy v. Bremerton School District, the school prayer case.

With the court moving away from the separation of church and state and toward a ruling that could legalize discrimination against LGBTQ+ people, members of the community fear what could happen if laws such as Texas's anti-sodomy are revived.

Texas, it seems, will be leading the charge. "Gov. Abbott has already introduced multiple bills attacking LGBTQ youth. The main focus of his attacks right now is on the Trans community of Texas," Katie said of her former home state. "Many of my Queer friends both in Washington and Texas are scared of our rights being taken away."

"These bills include prosecuting parents that help their child transition for child abuse and making it illegal to provide safe transition-related healthcare," she continued. "There's also a bill that prevents Trans youth from participating in sports teams that align with their gender identity. While these anti-LGBTQ bills are dead, the introduction of the bills alone creates a scary view of the future for the LGBTQ community of Texas."

As the emergence of trigger laws has shown, some laws are never truly dead. While it will still take overturning several influential cases to see the end of Gay marriage and contraception, the possibilities are on the horizon, and the overturning of Roe is enabling lawmakers to take steps toward this bleak future.