Fri | Jan 28, 2022

If Roe falls, some fear ripple effect on civil rights cases

Published:Wednesday | December 8, 2021 | 12:08 AM

If the Supreme Court decides to overturn or gut the decision that legalised abortion, some fear that it could undermine other precedent-setting cases, including civil rights and LGBTQ protections.

Overturning Roe v Wade would have a bigger effect than most cases because it was reaffirmed by a second decision, Planned Parenthood v Casey, three decades later, legal scholars and advocates said. The Supreme Court’s conservative majority signalled in arguments last week they would allow states to ban abortion much earlier in pregnancy and may even overturn the nationwide right that has existed for nearly 50 years. A decision is expected next summer.

“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,” said Samuel Spital, director of litigation at the NAACP’s Legal Defense Fund.

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 legalised same-sex marriage and LGBTQ intimacy.

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 criminalised same-sex intimate relationships, rest on the same legal precedent.

“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”.

Those cases, though, are distinctly different, said Melissa Murray, a law professor at New York University. 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,” she said.

The reference to Brown v Board of Education, meanwhile, was “offensive and disturbing”, Spital said. While justices often pose hypotheticals, comparing Roe to an 1896 court decision that “facilitated the legal dehumanisation of black people” crossed a line, he said.

For anti-abortion advocates, though, the Roe decision allows for “the purposeful termination of a human life”, as Mississippi Solicitor General Scott Stewart put it during arguments. “Nowhere else does this court recognise the right to end a human life,” he said.

A decision in favour of Mississippi wouldn’t call into question any of those other civil rights cases, he argued.