Some legal experts in the Chicago area say the Supreme Court’s legal reasoning in overturning Roe v. Wade indicates it is willing to revisit landmark cases that legalized contraception, consensual sex between adults and same-sex marriage.
The court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, issued Friday, said the decision “concerns the constitutional right to abortion and no other right.” But in a concurring opinion, Justice Clarence Thomas wrote that other cases stemming from the Constitution’s due process clause should be reconsidered as well.
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“Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents,” he wrote.
University of Chicago Law School professor Mary Anne Case took that to be a clear invitation for red state lawmakers to push the legal envelope on matters other than abortion — a campaign that might eventually affect blue states like Illinois, too.
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“I’ve seen indications that there are state legislators that now want to outlaw some form of contraception,” she said. “There are plenty that would like to overturn same-sex marriage.”
Thomas singled out three cases: Griswold v. Connecticut, which in 1965 overturned a ban on contraception; Lawrence v. Texas, a 2003 decision that threw out the state’s criminalization of sexual intimacy between same-sex couples; and Obergefell v. Hodges, which in 2015 legalized same-sex marriage.
All rest on the due process clause of the 14th Amendment, which has been taken to mean people have privacy rights that aren’t spelled out in the Constitution. With the court’s majority now finding that abortion isn’t one of them, Illinois activists and politicians warned other seemingly settled issues are also at risk.
“Privacy rights are being eviscerated right before our very eyes,” Gov. J.B. Pritzker said in a statement. “If they can take away your ability to control your own body, there’s not much that stops them from making marriage equality illegal and taking away employment protections for your beliefs or your orientation.”
Concern over the court’s direction is expected to be a theme at Sunday’s Pride Parade in Chicago. Camilla Taylor, deputy legal director for litigation in the Midwest office of Lambda Legal, called the Dobbs decision “deeply threatening” to LBGT protections, particularly for people of color, transgender and gender-nonconforming people.
“Our focus today is on damage done by a travesty of a decision, and we will work in future days to make sure the protections for LGBT people are not rolled back,” she said.
Mony Ruiz-Velasco, deputy director of Equality Illinois, an organization that works to advance rights for LGBTQ+ people, said the court appears poised to go after “many other rights that hinge on privacy rights,” including long-held protections for the LGBTQ+ community.
“I can tell you, based on conversations I’ve been having throughout the day, even though many of us were expecting the decision … it doesn’t hurt less to see it in writing and to see our country moving backward,” Ruiz-Velasco said.
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Ruiz-Velasco encouraged people to get organized to fight to both protect current rights and expand protections, even in progressive states.
She said Equality Illinois has been working with the state’s lawmakers to remove obstacles for obtaining a legal name change. She noted that Congress could pass a marriage equality law to protect it from a Supreme Court reversal.
As for contraception, lawmakers in several states have tried to ban IUDs and the so-called morning-after pill, which they see as tantamount to abortion. Some have indicated they might try again.
Andrea Tone, a history professor at Quebec’s McGill University and author of “Devices and Desires: A History of Contraceptives in America,” said the lack of universally legal birth control prior to 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 that’s not how all Americans experienced it,” she said. “I interviewed one woman who lived in Massachusetts in the 1960s, and she hadn’t heard of the pill before she got pregnant.”
Legal experts interviewed by the Tribune knew of no cases in the pipeline that could overturn the decisions identified by Thomas. But Steven Schwinn, a professor at the University of Illinois Chicago School of Law, said it’s likely conservative states will start looking for test cases.
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“We may see states start to enact laws that ban same sex marriage or restrict contraception or criminalize certain consensual adult sexual behavior in a way that’s designed to tee up a case like that,” he said. “I fully expect state legislations will move in that direction very quickly.”
Chicago’s Thomas More Society, a conservative legal organization that protested the Obergefell decision as “sheer judicial activism and politics run amok,” declined to comment on whether it should be revisited.
“Today is about the binding majority opinion, not the various concurrences and dissents,” senior counsel Peter Breen said in a statement. “As for Justice Thomas, he agreed that the majority opinion — which he joined — doesn’t impact any of those other decisions, as abortion is unique because there are two lives involved.”
Northwestern University law professor Ronald Allen said he didn’t think the court decisions dealing with same-sex marriage and consensual sexual relations were in jeopardy, given the broad range of legal issues entwined within them.
“These cases involve subtle and complex and ambiguous questions,” he said. “They won’t be straightforward or able to be dispatched with a magic bullet.”
He identified a different decision the justices might go after — Miranda v. Arizona, which requires police to advise suspects of their right to remain silent (the court put new limits on it Thursday). That has been a longtime target of conservative lawmakers, he said, and like Roe, it has been criticized as an example of legislating from the bench.
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While Illinois and other blue states have strong 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 raw 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 Lourgos contributed.
