Democrats warn repealing Roe could erode host of privacy rights

Democratic policymakers are sounding the alarm that a Supreme Court decision to repeal Roe v. Wade would trigger a domino effect resulting in the erosion of court-sanctioned liberties extending well beyond abortion rights.

Because the Roe decision hinged on the argument that women have a constitutional right to privacy, the Democrats warn rescinding those protections would threaten other freedoms resting on a similar legal basis, including the right to gay marriage, consensual sexual activity, parental independence and access to birth control.

“Make no mistake: by striking down Roe v. Wade, the Court would pave the way for Republicans to obliterate even more of our freedoms,” Speaker Nancy Pelosi (D-Calif.) said Tuesday in a statement. 

The warning is not a new one from left-leaning lawmakers like Pelosi who have spent decades fighting to protect the abortion rights established by the landmark 1973 case. But it took on new urgency this week following a blockbuster Politico report on a draft opinion revealing the Supreme Court appears poised to rescind the constitutional protections established by Roe — a move that would kick the future of reproductive health rights to a patchwork of states and a bitterly divided Congress. 

“This draft ruling offers a dangerous blueprint for future assaults on some of our most cherished rights, which are rooted in the long-held constitutional right to privacy,” Pelosi said.

A similar alarm came quickly from the White House, where President Biden warned Tuesday that the draft decision was a “radical” departure from established law — one that could lead to the erosion of “a whole range of rights” and threaten “every decision that could be made in the notion of privacy.”

“It basically says all the decisions relating to your private life — who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions, how you raise your child — what does this do?” Biden told reporters outside Washington. 

“Does it mean that in Florida, they can decide they’re going to pass a law saying that same-sex marriage is not permissible?” 

The politics surrounding abortion have been explosive since long before the Supreme Court’s Roe decision almost 50 years ago, when the high court made access to the procedure a constitutional right. But with the country’s ever-increasing polarization into rigid ideological camps — a trend reflected in Washington — the issue has become something of a litmus test for Supreme Court hopefuls nominated by presidents of both parties. 

The draft ruling published by Politico on Monday pertains to a case, Dobbs v. Jackson Women’s Health Organization, weighing the legality of a Mississippi law banning most abortions after 15 weeks. Dated Feb. 10, the 98-page draft was endorsed by five of the nine justices, Politico reported.

The author of the document, the conservative Justice Samuel Alito, argued the legal foundation propping up the Roe decision was “egregiously wrong” since abortion rights bear no mention in the text of the Constitution and play no conventional role in the country’s legal heritage. 

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote. He says an issue as divisive as abortion should be left to politicians, not judges. 

Critics of Alito’s argument were quick to point out that the nation’s legal system has evolved to embrace a host of liberties that are also absent from the Constitution and play little role in cultural tradition. Those include Supreme Court decisions allowing the universal sale and use of contraception (1965); preventing states from banning interracial marriage (1967); and empowering same-sex couples to marry (2015).

“Simply put, the Court’s pulling out the thread of abortion rights threatens to unravel a fabric of rights that has been protected for decades,” Erwin Chemerinsky, law professor at the University of California, Berkeley, wrote Tuesday in Time magazine. 

The privacy argument that fortified the Roe decision has been controversial not only among abortion opponents. Some liberal champions of abortion rights — including the late Supreme Court Justice Ruth Bader Ginsberg — feared that the legal scaffolding on which the decision rested was too broad, leaving it vulnerable to attacks. Those voices said abortion rights would be better protected if the court’s decision had been based on a woman’s right to equality, rather than privacy — a foundational concern that Alito cites in his draft. 

Alito also appears to have anticipated the criticisms about the erosion of broader privacy rights. His draft ruling stipulates that the decision “concerns the constitutional right to abortion and no other right.” 

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.

That claim did little to reassure the Democrats of Capitol Hill, however, who are already accusing certain conservative justices of “lying” about their position on Roe during the nomination process and have little inclination to believe them on other issues. 

“SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights,” tweeted Rep. Alexandria Ocasio-Cortez (D-N.Y.).

Rep. Barbara Lee (D-Calif.), another long-time champion of women’s rights on Capitol Hill, delivered a similar warning about the broader repercussions of Roe’s repeal. 

“PSA: if Roe falls, your constitutional right to birth control will also be in jeopardy,” Lee retweeted in response to the Politico report. “This has never just been about abortion. It’s about controlling & criminalizing our bodies.” 

The criticism was not limited to liberals. Rep. Henry Cuellar (D-Texas), a centrist Blue Dog who opposes abortion in most cases, said Alito’s ruling goes too far.

“[I]t is not based on precedent and is not incremental in nature,” Cuellar said in a statement. “It will further divide the country during these already divisive times, but let us wait until the final ruling.”

The release of the draft ruling sent shockwaves across Capitol Hill on Tuesday, not least because a leak of such a kind was virtually unprecedented in the modern history of the Supreme Court. 

Still, the language of Alito’s decision could change as the case moves to a conclusion later this year. And all nine justices reserve the freedom to alter their positions as the debate evolves.

Meanwhile, Democrats are pushing for a number of legislative reforms to counteract the potential decision, including proposals to expand the number of justices on the high court; codify Roe into law; and repeal the Senate filibuster, which empowers the minority party to block legislation that lacks 60 votes in the upper chamber. 

None of those, however, have much chance of passing through the Senate ahead of November’s midterm elections.