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“After Roe falls, gay marriage and contraception rights could be next.”

“A young protester listens outside the Supreme Court on May 3 as Sen. Elizabeth Warren (D-Mass.) speaks to demonstrators who support abortion rights. Photo credit: Anna Moneymaker/Getty Images via The Washington Post

“The right to privacy — not just abortion — is on the chopping block”

“In the leaked draft opinion, Justice Alito channels Robert Bork’s views on Roe”

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Perspective by Neal Kumar Katyal, a law professor at Georgetown University, formerly served as acting solicitor general of the United States.

These are key excerpts from Mr. Katyal’s commentary:

“Those despairing about this draft opinion should remember that the courts do not monopolize abortion politics. Congress could fix the problems such a decision would cause. It can pass a statute guaranteeing the right to abortion, thereby codifying Roe. Such a law would be quite hard for the court to overturn.

Senators who voted for nominees believing that they would uphold Roe v. Wade as settled precedent — Sen. Susan Collins (R-Maine) comes to mind — should be doing everything possible to make such legislation the law of the land.”

“But while such legislation could fix the abortion restrictions, it couldn’t undo the legal reasoning in the draft opinion, which will fester and reach other cases. The court’s test of “deeply rooted” traditions could now be used to attack Griswold and much more…And here, the legal principle adopted by the draft opinion — whether rights are historically grounded in the traditions of the American people — is unfortunately a road map to overruling Griswold, because it calls into question the right to privacy. That paves the way for states to ban the use of birth control.

A high court that tosses out the right to privacy need not stop there. Marriage equality, guaranteed by the 2015 decision Obergefell v. Hodges (written by Republican appointee Anthony M. Kennedy), is now also threatened. There is obviously no tradition of same-sex marriage per se, but Kennedy’s brilliant opinion allowed the court to reach deeper into the American tradition of liberty to generalize about the rights and freedoms at stake. The same move made in the draft opinion about abortion, however, could be used to overturn Obergefell. If that were to happen, gay marriage would again be illegal in the many states that still have (currently outdated) gay-marriage bans still on their books.

Posted by Steve on May 4, 2022 at 9:41 pm | Permalink

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