An apparent decision by the U.S. Supreme Court to strike down abortion rights could open broader threats to some types of contraception and to LGBTQ+ rights, including same-sex marriage, Berkeley legal scholars say.
In interviews Tuesday after the high court’s draft decision emerged, the Berkeley Law experts said that if court does overturn its landmark Roe v. Wade ruling, the harmful impact on women’s health and work lives will be profound. The effects will fall most heavily on low-income women, especially women of color, said Professor Khiara M. Bridges, an expert in reproductive law and justice.
“In states where abortion is illegal, privileged folks will have relationships with medical providers who will be able to perform an abortion for them despite the law,” Bridges said. “Or they will travel to states where the procedure is still legal. Marginalized folks are the ones who will be forced to carry unwanted pregnancies to term or to terminate pregnancies under unsafe conditions. This was true before Roe was handed down in 1973. And it will be true after Roe officially falls this summer.”
But if Roe is overturned, the Supreme Court and democracy itself would be damaged, the scholars said. Many people would believe that the court’s dominant block of justices were driven by conservative political and religious motives to reshape the American landscape for a range of legal rights.
Recent polls show that as many as 70% of Americans believe that the court should not overturn Roe v. Wade — and a poll last fall also showed just 40% of the public approves of the court’s performance, a historic low, said Berkeley Law Dean Erwin Chemerinsky.
If the court’s draft ruling holds, as expected, “the American people are going to perceive this not as a decision about law, but about right-wing politics that oppose abortion rights,” Chemerinsky said. “This will be a further blow — maybe a devastating blow — to the Supreme Court’s legitimacy and credibility.”
Berkeley Law Professor Kristin Luker, a legal scholar and sociologist who has written about reproductive rights since the 1970s, said a decision to overturn Roe would be “historic” — as if the court had decided to overturn the landmark Brown v. the Board of Education of Topeka decision that outlawed racial segregation in public schools.
With Justice Samuel Alito’s draft decision on abortion, “it’s as if the Supreme Court said Brown v Board of Education was wrongly decided, and that they were going to turn the issue over to the states,” Luker said. “I believe this is the civil rights issue of our era.”
Was Roe “egregiously wrong from the start”?
Nearly 50 years ago, in January 1973, the Supreme Court said in Roe v. Wade that a fundamental right to privacy was embedded — though not explicit — in the 14th Amendment to the U.S. Constitution. While the Constitution makes no mention of abortion, the court found on a 7-2 vote that a woman’s decision to have an abortion was protected under that right.
The court is currently focused on a Mississippi law that bans almost all abortions after the 15th week of pregnancy. Alito’s draft ruling could be revised and, at least in theory, the decision could be reversed before the final outcome is announced. But the leaked draft published by Politico bluntly rejected the court’s reasoning in Roe, calling it “egregiously wrong from the start.”
Where past courts have seen the Constitution as a living document, subject to legal interpretation as time passes and conditions change, Alito’s draft views the Constitution as a literal authority that is much less subject to interpretation over time.
Alito “says a right should be protected by the Constitution only if it is found in the text — if it was clearly understood as part of the Constitution’s original meaning or supported by an unbroken tradition,” Chemerinsky explained. “Abortion isn’t in the text. It wasn’t part of the original meaning of the Constitution or of the 14th Amendment, and there wasn’t a long tradition of protecting abortion rights. Thus, Roe v. Wade was wrong and it should be overruled.”
That’s not how past justices have viewed the Constitution, however.
“Over the last century,” Chemerinsky said, “the Supreme Court has protected rights such as the right to marry, the right to procreate, direct custody of the children, the right to keep the family together, to control the upbringing of one’s children, 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 treatment.
“None of these rights are in the text of the Constitution,” he added. “If Justice Alito’s methodology is applied, all of these decisions are constitutionally suspect.”
If such legal protections are withdrawn, Bridges suggested, the people who have needed the court’s protection in the past will once again be vulnerable.
“Marginalized people — poor people, people of color, young people, trans people, people with disabilities, people who are survivors of domestic violence, undocumented people — they are the ones who will be hurt the most by a Supreme Court decision to overturn Roe,” she said.
An abortion ruling with impact far beyond abortion
The scholars cited several areas that might quickly come under legal and cultural pressure if Roe is overturned.
Contraception: If abortion can be outlawed by states, based on the premise that life begins at conception, then contraceptives such as the morning-after pill or even an intra-uterine device (IUD) could be challenged. In effect, they terminate a pregnancy by preventing a fertilized egg from embedding in the woman’s uterus.
Same-sex marriage: The high court affirmed the right of same-sex couples to marry only seven years ago, in the 2015 case Obergefell v. Hodges. The ruling has been extremely unpopular among some conservative Christians, even while it is accepted by the public.
Chemerinsky predicted that the court “is going to very much cut back on rights related to marriage equality, even if it doesn’t overrule Obergefell.”
For example, he said, a case before the Supreme Court next year focuses on a Colorado web designer who refused to design websites for same-sex couples, in violation of state law.
“I think the Supreme Court is going to say that businesses can discriminate against same-sex weddings,” he said.
Workplace discrimination. If Roe is overturned, Luker said, women in states where abortion is illegal may find that their work prospects are limited by employers who feel they are likely to become pregnant.
“We have very good evidence that liberalized abortion not only permitted women like me to go to graduate school and law school and professional school, but it also enabled women to invest human capital in themselves and compete with men on an equal basis,” she explained.
But if women are more likely to become pregnant, she said, they’re more likely to face a “motherhood penalty” from employers who worry about their commitment to the job. That can mean reduced pay and fewer opportunities for advancement.
Using jurisprudence to turn back the clock
Luker is the interim director of the Center on Reproductive Rights and Justice at Berkeley Law. In her view, the court and its conservative allies are trying to undo the vast, historic cultural changes that were set in motion by the upheavals of the 1960s.
In effect, she said, they want to elevate the ideals of heterosexual marriage, motherhood and family immortalized in black and white television shows from the 1950s, before the sexual revolutions that unfurled a decade later.
But that’s “an airbrushed idea of the past,” she said. It leads some conservative lawmakers to see pregnancy resulting from rape as an “opportunity,” and leads much of the nation to forget the sometimes grim choices once faced by women with an unwanted pregnancy.
“In a certain era, if you got pregnant and you weren’t married, either the boy married you or you went away to a dreadful home for pregnant women who were unmarried — with enormous shame,” Luker said.
“Many younger people who’ve grown up with legal abortion don’t realize what the old days used to be like.”