Overturning of Roe v. Wade could put other reproductive, and LGBTQ+ rights at risk: politicians, experts
DELMARVA – Local politicians and political experts are warning that the Supreme Court’s (SCOTUS) overturning of Roe v. Wade could pave the way for the court to take a second look at other landmark decisions.
“Housed within the Supreme Court’s decision overturning Roe was a legal logic that puts at risk so many other rights,” said Delaware State Senator Sarah McBride. “Either the majority opinion overturning Roe is hypocrisy, or they are laying the foundation to undermine the rights of contraception, the right to marry, and the right for same sex couples to consummate their relationship.”
Send It To The States
Dr. Samuel Hoff, Professor of Political Science at Delaware State University, says Roe v. Wade being overturned was not specifically about the right to abortions; rather, it turns the question of if that is a right that ought to be protected back over to the states. That could become true for key rulings that the SCOTUS has presided over, according to Dr. Hoff.
“When a federal right is discontinued, it essentially means it’s a free-for-all. Delaware, and many other states, have decided to retain their rights to that procedure,” said Dr. Hoff. “That could certainly include a right to privacy, and now there are other ways to counter the decision just made, or an expansion into denying substantive due process.”
Substantive Due Process
Substantive due process essentially means that courts can establish and protect certain rights from government interference. That’s even if those rights are not specifically mentioned in the U.S. Constitution. The Constitution’s preamble cites protection of general welfare in the 9th amendment.
Dr. Hoff says that means that because rights aren’t in the constitution, it doesn’t mean they aren’t retained by citizens “Other justices, and Americans themselves, may look to other parts of the Constitution to try to guarantee those kinds of privacy rights, and the areas of behavior in those cases we just cited,” said Dr. Hoff.
“We should reconsider”
The question of substantive due process stems from a sentence within Justice Clarence Thomas’ concurrent opinion, which reads, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Those cases guaranteed the right to contraception, privacy between consenting, adult same sex couples, and same sex marriage, respectively. “[Justice Thomas’] view is that although he believes there is a right of procedural due process in both the 5th and 14th amendments – that is the right to be treated fairly in the criminal justice process. He rejects the idea that there is a substantive due process right,” said Dr. Hoff. “If there’s an immediate concern that the court might pick up Justice Thomas’ views, I’d have to say those cases are probably the most in danger.”
Dr. Hoff points out that while Justice Thomas specifically named those three cases, he failed to include the Supreme Court’s ruling in Loving v. Virginia. The 1967 ruling granted federal protections to interracial marriages. “That case, of course, deals with interracial marriage, which Justice Thomas has a Caucasian wife, and he is African American,” said Dr. Hoff.
Hanging In The Balance?
While debate on substantive due process continues, Sen. McBride says the rights of those who rely on birth control and LGBTQ+ folk hang in the balance. “That is an incredibly dangerous precedent. It’s an incredibly dangerous form of logic that odes put at risk these other decisions,” she said. “Should a Supreme Court decision come that puts these rights at risk, we need to make sure that they are clearly protected both under state and federal law.”
Now that Roe v. Wade has been overturned, Sen. McBride says some states across the country are working to codify reproductive and LGBTQ+ rights in their state laws. In Maryland and Delaware, for example, the right to same sex marriage is already built into state codes.
“It’s critical that all of us leverage our voices to continue to advocate, to continue to open hearts and change minds, to continue to make legal progress. We can’t take anything for granted,” said Sen. McBride. “We need to continue to be vigilant as these attacks on LGBTQ equality persist at the state level, and at the federal level across the country.”
However, Sen. McBride says even further steps needs to be taken. That is, she hopes Delaware will codify reproductive and LGBTQ+ rights in the state’s constitution. “They’re not just rights. They are real, tangible care that people need to ensure that those protections are in our state constitution, and are there for good,” said Sen. McBride. “We are going to have to continue to fight, and pass legislation at the state level to further protect the rights that we hold dear as Delawareans, whether we’re women, LGBTQ people, people of color.”
Where do states go from here?
As states get busy deciding where they will go from here, Dr. Hoff says those decisions won’t come easy with the upcoming midterm election. He says changes in the number of Republicans and Democrats in the nation’s top governmental seats will come into play. “Going to the states is also going to be challenging, at least up until the 2022 Midterm Elections, which may change some of those numbers around,” said Dr. Hoff.
Until then, Dr. Hoff says there are a few avenues Americans could take to sidestep any future ramifications of revisited rulings. “The immediate solution may be for people to get out and vote, and elect representatives who, along the lines of a law or amendment, may be more amenable to those things,” he said.