The Associated Press this week wrote an article that had legal experts weigh in on the question: If the Supreme Court decides to overturn or gut the decision that legalized abortion, could they undermine other precedent-setting cases, including civil rights and LGBTQ protections?
The experts — on both sides of the political spectrum — seemed to agree that overturning Roe v. Wade would have a bigger effect than most cases.
In part, experts say, it is complicated because the historic case was reaffirmed by a second decision, Planned Parenthood v. Casey, three decades later. The Supreme Court’s conservative majority signaled in arguments last week they would allow states to ban abortion much earlier in pregnancy and might even overturn the nationwide right that has existed for nearly 50 years. According to the AP, a decision is expected next summer.
So what might some of these implications look like?
“If a case like Roe, which has this double precedent value, is overturned simply because there’s a change in the composition of the court, there’s really no way that we can have confidence in any of those precedents going forward,” Samuel Spital, director of litigation at the NAACP’s Legal Defense Fund, told the AP.
Anti-abortion advocates and legal scholars, meanwhile, argue that the Roe decision was unique, both in its legal reasoning and effects, and so overturning it wouldn’t affect other landmark cases.
“In Roe, I think you have really just a particularly bad decision,” said Erin Hawley, senior appellate counsel for Alliance Defending Freedom, a conservative legal group. She did not expect a Supreme Court decision against Roe to affect landmark cases that legalized same-sex marriage and LGBTQ intimacy, the AP article states.
Other experts disagree. Alison Gash, a professor at the University of Oregon, said Obergefell v. Hodges, which made same-sex marriage legal, and Lawrence v. Texas, which overturned laws which criminalized same-sex intimate relationships, rest on the same legal precedent, according to AP.
“Literally, the logic that allows for a woman to argue that she has a right to choose to have an abortion is the same logic that is used to argue that gay couples have the right to choose and marry the partner of their choice,” she said.
Justice Brett Kavanaugh mentioned those two landmark cases for the LGBTQ community during the Supreme Court arguments last week, along with Brown v. Board of Education, which ended race-based school separation and Gideon V. Wainwright, which said indigent defendants must have representation.
All of those, Kavanaugh said, were cases where the high court overturned precedent. If they had not “the country would be a much different place.”
But those cases are different.
Melissa Murray, a law professor at New York University, said by overturning those precedents, the court expanded civil rights for more Americans. Overturning Roe, by contrast, would take rights from women.
“We have never had significant overturning of precedent for the purpose of withdrawing rights. It’s always worked the other way, to expand rights. Not to withdraw them,” told the AP.
The reference to Brown v. Board of Education, meanwhile, was “offensive and disturbing,” Spital said in an interview. While justices often pose hypotheticals, comparing Roe to an 1896 court decision that “facilitated the legal dehumanization of Black people” crossed a line, he said.
The Obergefell case that gave LGBTQ people the legal right to marriage would also be safe because thousands of same-sex couples have relied on it to wed, and reliance like that makes courts less likely to make a major change, according to Teresa Collett, a University of St. Thomas School of Law and director of its Prolife Center. “In short, I think overruling Roe and Casey will have zero impact on Lawrence and Obergefell as binding legal precedent,” she wrote in an email to the AP.
At least some conservative attorneys have a different point of view. The lawyer who conceived Texas’ strict new abortion ban also suggested that same-sex intimacy and marriage are “court-invented rights” in a brief filed in support of the Mississippi law. Jonathan Mitchell argued for the Supreme Court to not only overturn Roe and Casey, but to “write an opinion that leaves those decisions hanging by a thread.”
“Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe,” he wrote.
That line of thinking has some LGBTQ advocates deeply concerned.
No question, much is at stake. The fabric of U.S. jurisprudence is starting to feel a bit threadbare.