If Roe falls, other rights could follow, warn Bay Area legal experts
OAKLAND - The draft opinion by Justice Samuel Alito suggesting the Supreme Court might overturn Roe v. Wade is based on legal arguments that could have impacts far beyond abortion and lead to other laws and rights being eliminated.
"Long-term, I think this a blueprint for the Court to undo so many of the rights that we have obtained in the last 50 years like the access to consensual same-sex gay marriage, access to contraception," Luis Hoyos, a San Francisco attorney, said on Wednesday.
Erwin Chemerinsky, Dean of the UC Berkeley School of Law, says Alito's reasoning is a stunning departure from the prior courts' rulings.
"Roe v. Wade was a 7 to 2 decision. Justice Harry Blackmun, who was appointed by Republican President Richard Nixon said privacy is a fundamental right under the constitution and laws that prohibit abortion infringe on women's right to privacy," Chemerinsky said. "I found it stunning that Justice Alito would say about a former justice, that the opinion was egregiously wrong and exceedingly poorly reasoned."
Alito's draft majority opinion represents a fundamental shift in the court's interpretation of constitutional protections, according to Chemerinsky.
"Justice Alito's draft opinion says that a right should be protected by the Constitution only if it's stated in the text, was clearly part of the original meaning of the Constitution, or if there's a long tradition of protecting it. Well, there are so many rights that the courts protected that don't meet those criteria," said Chemerinsky.
Chemerinsky listed the many potential rights that could be overturned.
"The right to marry," he said. "The right to procreate. The right to custody of one's children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right of consenting adults to engage in same-sex sexual activity, the right of competent adults to refuse medical care. All of these rights are in jeopardy under Justice Alito's reasoning."
Legal experts say past courts have seen those rights and others as protected under the Fourteenth Amendment.
"This is not going to end the political fight over abortion," Chemerinsky. "In fact, it's going to intensify it. This isn't going to end states adopting laws. It's going to increase it. In addition to many states adopting laws prohibiting abortion, I think we'll soon see states passing laws to prohibit forms of contraception, like the IUD, and the morning after pill that act after conception, or prohibiting in vitro fertilization, where all the embryos are not implanted. There's a bill in Missouri that would prohibit women from leaving the state to get an abortion."
Chemerinsky says Alito's opinion would leave abortion up to state and federal lawmakers and the political process.
"California can protect the right to abortion under its constitutional laws, even though there's no United States constitutional right to abortion," Chemerinsky said. "The only catch is Congress can always preempt state law. And if Congress wants to pass a law prohibiting abortion everywhere in the country, then there's nothing California can do about it."
The process, some say, has injected politics into the judicial system.
"Presidents who don't have the majority vote are appointing justices that are making decisions about our civil rights and civil liberties," said Hoyos.
Jana Katsuyama is a reporter for KTVU. Email Jana at firstname.lastname@example.org and follow her on Twitter @JanaKTVU or Facebook @NewsJana or ktvu.com.