Reinette LeJeune

A leak of a draft Supreme Court decision to end the nationwide right to abortion has sparked much debate and speculation that other landmark rulings could now be on shakier ground, including those that legalized same-sex marriage and birth control. 

In the leaked draft opinion obtained by Politico, Supreme Court Justice Samuel Alito wrote that the Roe v. Wade decision was wrongly decided and “abortions are not protected by the constitution.” Should the Supreme Court move forward with this ruling, it would allow individual states to regulate or ban abortion. For Arizona, that would mean an immediate criminalization overnight. Due to a law that has been on the state’s books since the 1800’s – one that sentences abortion providers to a maximum of up to five years in prison – Roe v. Wade currently stands as the only protection against it. Though the law does allow for an exception should pregnancy threaten one’s life (but not for rape or incest), state Republicans have been hard at work long before the Supreme Court’s leak to severely limit, if not outright ban abortion services. One such bill, HB 2650, was originally tailored to ignore Roe v. Wade should it remain as a federal law, classifying abortion as homicide while charging both providers and recipients “regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions or executive orders.” Since first entering office in 2015, Governor Doug Ducey has signed every piece of anti-abortion legislation to land on his desk, and is expected to continue to do so until his inevitable exit in 2023 – Ducey is term limited.

Griswold v. Connecticut, which first established the right to use birth control, was key to establishing the right to privacy, which had not been directly outlined in the U.S. Constitution. Concerned with a nearly century-old Connecticut law banning the use of all forms of contraception, Griswold v. Connecticut challenged that married couples did in fact have the right to privacy despite state bans. In a 7-2 vote, the justices ruled that marital privacy is in fact protected against state bans on contraceptives — and helped establish the idea that privacy is a constitutional right. Griswold has since become a major precedent establishing, in several opinions, that people have the right to be free from government interference when exercising their fundamental rights. Overturning Roe v. Wade would set a dangerous new precedent for privacy rights in America, countless laws would face the gallows in similar regard. Lawrence v. Texas, Obergefell v. Hodges, Loving v. Virginia, Benitez v. North Coast Women’s Care Medical Group, Brandon v. Richardson County and many more like these could all be undone, throwing millions of citizens into harm’s way. 

In the example of Obergefell v. Hodges which granted same-sex marriage, the arguments used to dismantle Roe v. Wade can also be applied. In Roe v. Wade, the Supreme Court relied on the right to privacy under the due process clause in the 14th Amendment as a justification for interpreting abortion as a fundamental right protected by the Constitution. The same privacy right was used in Obergefell, where the court ruled gay marriage to be a fundamental right. In his draft opinion in the abortion case, Justice Alito argues that the court should not create new fundamental rights that could apply under due process. Further, even if the court could create new rights wholesale, any right, Alito argues, should be “deeply rooted in the nation’s history and traditions.” His argument is that abortion (and potentially same-sex marriage) is not part of those traditions and history because they are not specifically named in the Constitution. If this idea of thinking is expanded across the legislative board, any granted rights not explicitly named in the Constitution can be erased or reversed. Everyone in America, particularly members of disenfranchised communities would be affected by these threats to our democracy.