Overturning other constitutional rights are possible but will require action at the state or local level
PITTSBURGH (KDKA) — The Supreme Court's decision to overturn abortion rights for all has created concern about other rights grounded in the same provisions of the U.S. Constitution.
As KDKA political editor Jon Delano, an attorney, explains, it's not clear yet how far this conservative court will go in future cases.
In law school, hours are spent debating constitutional rights that we often take for granted but are not explicitly spelled out in the Constitution. Now, scholars say the Supreme Court's action in the Dobbs case to overturn abortion rights calls some of those other rights into question.
"People should be quite concerned about the precedent this opinion has for other rights that we hold dear," Professor Greer Donley from the University of Pittsburgh Law School said.
They are called substantive due process rights, grounded in the 14th Amendment and approved by earlier Supreme Courts, even if not explicitly spelled out in the Constitution.
These include the right of married couples to use contraceptives (Griswold, 1965), the right to marry a person of a different race (Loving, 1967), the right of single or unmarried people to use contraceptives (Eisenstadt, 1972), the right to an abortion in certain stages of pregnancy (Roe, 1973), the right of consenting adults to engage in all forms of sex (Lawrence, 2003) and the right to same-sex marriage (Obergefell, 2015).
In striking down Roe, Justice Samuel Alito basically said abortion rights did not exist when the 14th Amendment was passed in 1868, so it cannot be a substantive due process right. That opens the door, says Donley, to repeal these other rights.
"Certainly, if they do a similar type of analysis in revisiting the right to gay marriage and the right to contraception, they will find in the same way that there was no protected right to gay marriage at the time the 14th Amendment was ratified or right to contraception," Donley said.
"Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," Alito wrote in the majority opinion.
"I do not buy Justice Alito's attempt to limit this case," said Sara Rose, the deputy legal director of the Pennsylvania ACLU.
Rose says Alito's repeated attempts to say abortion rights are different fall flat.
"There's just no way to distinguish the decision here from any of the other decisions that recognize this right to privacy in one's own home, the right to make decisions about sexual partners, or contraception," adds Rose.
"As a matter of logic or legal precedent, there's very good ground for us to believe that those things could change," said Professor Amy Wildermuth, the dean of the University of Pittsburgh Law School who once clerked at the Supreme Court.
Wildermuth said these other rights could be next, but "At this point, I don't see five justices willing to do that."
To get a case to the Supreme Court to overturn birth control, intermarriage, or same-sex marriage would require a state, county or municipality to outlaw it, arguing, as some did with Roe, that the earlier cases were wrongly decided.
"We're seeing a new crop of these sorts of ordinances, legislation, actions by government officials that could give rise to these new questions. What we thought were settled may or may not be settled," notes Wildermuth.
Of course, the court may have different justices by then, confirmed by the Senate, or Congress could pass a federal law protecting those rights.
But it all comes down to who votes for whom this November and in the years to come.
While the focus has been on the federal Constitution, Pennsylvania has a state Constitution that declares equality of rights cannot be abridged because of gender or race. It's not clear yet how that could protect abortion rights or any of these other rights at risk in this state.