Some legal experts in the Chicago area say the Supreme Court’s legal reasoning in quashing Roe v. Wade indicates it’s willing to revisit historic cases that legalized birth control, consensual adult sex and same-sex marriage.
The court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, released Friday, said the decision “concerns the constitutional right to abortion and no other right.” But in a unanimous opinion, Judge Clarence Thomas wrote that other matters arising from the Constitution’s due process clause also need to be reconsidered.
“Because any substantive decision on a fair trial is ‘demonstrably wrong’…we have a duty to ‘correct the error’ identified in those precedents,” he wrote.
Mary Anne Case, a professor at the University of Chicago Law School, took that as a clear invitation to red state lawmakers to push the legal boundaries on matters other than abortion — a campaign that could eventually hit blue states like Illinois as well.
“I’ve seen evidence that there are state lawmakers now looking to ban some form of birth control,” she said. “There are plenty who want to undo same-sex marriage.”
Thomas selected three cases: Griswold v. Connecticut, which overturned a birth control ban in 1965; Lawrence v. Texas, a 2003 decision rejecting the state’s criminalization of sexual intimacy between same-sex couples; and Obergefell v. Hodges, who legalized same-sex marriage in 2015.
They are all based on the 14th Amendment due process clause, which is believed to mean that people have privacy rights that are not enshrined in the constitution. Now that the court majority has determined that abortion is not one of them, Illinois activists and politicians warned that other seemingly resolved issues are also at risk.
“Privacy rights are being eroded before our eyes,” Governor JB Pritzker said in a statement. “If they can take away your ability to control your own body, there’s not much stopping them from making marriage equality illegal and taking away employment protections for your beliefs or your orientation.”
Concerns about the court’s direction are expected to be a theme during Sunday’s Pride Parade in Chicago. Camilla Taylor, deputy legal director of litigation in the Midwestern office of Lambda Legal, called the Dobbs decision “deeply threatening” to LBGT protections, particularly for people of color, transgender people and people who are not gender-matched.
“Our focus today is on the damage done by a mockery of a decision, and we will work in the coming days to ensure that protections for LGBT people are not rolled back,” she said.
Mony Ruiz-Velasco, deputy director of Equality Illinois, an organization dedicated to advancing rights for LGBTQ+ people, said the court appears to be ready for “many other rights that depend on privacy rights,” including long-standing protections. for the LGBTQ+ community .
“I can tell you, based on conversations I’ve had all day, although many of us expected the decision … it hurts no less to see it in writing and to see our country going backwards,” Ruiz said. – Velasco.
Ruiz-Velasco encouraged people to organize to fight to both protect current rights and extend protections, even in progressive states.
She said Equality Illinois has been working with state lawmakers to remove obstacles to getting a legal name change. She noted that Congress could pass a marriage equality law to protect it from a Supreme Court reversal.
As for birth control, lawmakers in several states have tried to ban IUDs and the so-called morning-after pill, which they say equates to abortion. Some have indicated that they might give it another try.
Andrea Tone, a history professor at McGill University in Quebec and author of “Devices and Desires: A History of Contraceptives in America,” said the lack of universally legal contraception before the Supreme Court’s intervention resulted in unplanned pregnancies, illegal abortions and the use of ineffective over-the-counter methods.
“We often think of the 1960s as an era of sexual freedom and liberty, but not all Americans experienced it that way,” she said. “I interviewed a woman who lived in Massachusetts in the 1960s, and she had never heard of the pill before she got pregnant.”
Legal experts interviewed by the Tribune knew of no cases in the pipeline that could reverse the decisions Thomas identified. But Steven Schwinn, a professor at the University of Illinois Chicago School of Law, said it’s likely conservative states will look for test cases.
“States may begin to enact laws banning same-sex marriage or restricting contraception or criminalizing certain consensual adult sexual behaviors in a manner intended to resolve such a matter,” he said. “I fully expect state law to move in that direction very quickly.”
Chicago’s Thomas More Society, a conservative legal organization protesting Obergefell’s decision as “pure judicial activism and political runaway,” declined to comment on whether it should be reconsidered.
“Today is about the binding majority opinion, not the differing consents and dissent,” senior counsel Peter Breen said in a statement. “As for Justice Thomas, he agreed that the majority opinion — which he joined — does not influence any of those other decisions, as abortion is unique in that it involves two lives.”
Ronald Allen, a Northwestern University law professor, said he didn’t think court decisions on same-sex marriage and consensual sexual relations were in jeopardy, given the wide range of legal issues involved.
“These cases involve subtle and complex and ambiguous questions,” he said. “They won’t be easy or can be sent with a magic bullet.”
He identified another decision the judges could make — Miranda v. Arizona, which requires police to advise suspects about their right to remain silent (the court set new limits on Thursday). That has long been a target of conservative lawmakers, he said, and like Roe, it has been criticized as an example of bench-top legislation.
While Illinois and other blue states have strict abortion protections, some Republicans have said they want to push for a national ban. Case said the Dobbs decision doesn’t rule that out.
“(The conservative majority) is now at the point where the brutal exercise of power is enough for them,” she said. “Giving reasons, let alone good ones, doesn’t seem to be part of the project.”
Tribune reporter Angie Leventis Louurgos contributed.