Democrats are raising red flags about what else could be on the chopping block if the Supreme Court strikes down Roe v. Wade, the landmark decision that enshrined abortion rights.
They fear that if the leaked draft opinion by Justice Samuel Alito is the court’s final ruling, it would upend not only reproductive health care access but also signal a more activist conservative majority ready to start curtailing or overturning decades-old decisions.
Democrats think everything from access to birth control to same-sex marriage could soon be on newly shaky ground.
“Gay marriage. Consensual sexual activity between adults. Family planning. They are all part of the word ‘privacy’ which Alito can’t find in the Constitution, just like he can’t find ‘abortion,’” Sen. Dick Durbin (D-Ill.), the Senate Judiciary Committee chairman, said.
Sen. Tim Kaine (D-Va.), in a brief interview, pointed to Griswold v. Connecticut, the 1965 decision that struck down a state law that barred married couples from using contraceptives. Griswold, like Roe, rested on what the Supreme Court said was an individual’s right to privacy.
“I think the most obvious one is Griswold just because it deals with that same kind of notion of privacy, which Alito seems to reject. … I think the scope of the rationale is incredibly sweeping,” Kaine said.
“You see states doing things with respect to emergency contraception. … The attack on contraception is already underway,” Kaine added. “I can’t see any distinction between the way they wrote that opinion about abortion and if they had a contraception case, you could just take out the word abortion, put in contraception.”
Alito appeared to try to anticipate that argument, writing, “We emphasize that our decision concerns the constitutional right to abortion and no other right.”
And Republicans are trying to distance themselves from the Democratic line of attack that, if Alito’s draft is the court’s final decision, they will next try to go after birth control.
“Joe Biden and Democrats have and will continue to spread lies about where Republicans stand on abortion and women’s health care,” reads talking points circulated by the Senate GOP arm. “Republicans do not want to take away contraception.”
But that’s done little to tamp down warnings from Democrats, who view Alito’s draft as overly broad and excluding a wide range of protections.
They point to Alito’s argument in the draft that rights not explicitly mentioned in the Constitution “must be deeply rooted in this Nation’s history and tradition.”
When the Supreme Court decided Roe in a 7-2 ruling, they pointed in part to the 14th Amendment, which has also been used in cases on contraceptives, preventing states from banning interracial marriage and empowering same-sex couples to marry.
“The rationale expressed there would basically undermine a whole series of cases. … If you say, ‘Hey, the word abortion isn’t mentioned in the Constitution,’ marriage isn’t either,” Kaine said.
“There’s a whole lot of things that aren’t mentioned in the Constitution, but there have been decisions made under the equal protection or due process clauses of the 14th Amendment that all could be in jeopardy,” he added.
Sen. Tammy Duckworth (D-Ill.), asked during a CNN interview if she believed Alito when he wrote that the opinion is only meant to address abortion, said that she didn’t “because what he also said was that the word abortion is not enshrined in the Constitution.”
“But you know what? Neither is privacy. The word privacy isn’t in the Constitution either. The enumerated rights that he does mention in this brief talks about all of the other things that we assume are rights that we have that our founders never could even dream of,” she added.
Democrats are signaling they plan to seize on that thread as they try to paint Republicans as out of touch with where a majority of American voters are heading into November. Democrats are facing steep headwinds with both the House and Senate up for grabs but see an election-year fight over abortion as one that could help electrify their base.
A majority of Americans, 54 percent, believe Roe should be upheld, according to a Washington Post-ABC News poll. A 2021 Gallup poll also found that 70 percent support same-sex marriage. The 2015 Supreme Court decision that legalized same sex marriage nationwide was decided 5-4; since then, two of the justices in the majority have either died or retired and their successors were picked by then-President Trump.
Asked on Wednesday about the Supreme Court’s ruling, President Biden pivoted to argue that striking Roe could portend an erosion of other rights.
“What are the next things that are going to be attacked?” Biden asked. “Because this MAGA crowd is really the most extreme political organization that has existed in American history — in recent American history.”
Senate Majority Leader Charles Schumer (D-N.Y.), during a weekly press conference, predicted that the Supreme Court — which he referred to as a “right-wing retrograde court” — “won’t stop there.”
“Many other rights are at risk if they succeed in getting this accomplished. So that’s the bottom line here, folks. We have a great contrast between the Republican vision for America and our vision for America. This isn’t your grandfather’s Republican Party, America,” Schumer said.
“It’s Donald Trump’s Republican Party. It’s a right-wing Republican Party,” he added. “It’s a party where your children will have less rights than you did.”