Sotomayor Says Abortion Case Imperils LGBTQ Rights

(Bloomberg Law) -- Supreme Court justices asked whether a ruling in favor of Mississippi’s 15-week abortion ban could call into question other seemingly settled constitutional rights, from the use of contraception, to the criminalization of sodomy, to the more recently recognized right to same-sex marriage.

A majority of the justices signaled at argument Wednesday that they will curtail or even overturn the court’s landmark rulings governing the right to an abortion, Roe v. Wade and Planned Parenthood v. Casey, even though they’ve been the law of the land for decades.

The Supreme Court has recognized other implicit rights including several under the “right to privacy,” which itself isn’t explicitly in the text of the Constitution.

If the court does an about-face on abortion, Justice Sonia Sotomayor warned the high court could face similar challenges to other rights grounded in the same principles.

Privacy Zones

In the 1965 ruling in Griswold v. Connecticut, the court said that the Constitution creates “zones of privacy” even though such a right isn’t explicit in the text. Those zones exist within the “penumbras” of the specific rights in the Bill of Rights, the court said.

Sotomayor noted on Wednesday some of the rights the court has “discerned” from the Constitution.

Along with abortion, the court has “recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home if they choose,” Sotomayor said. “We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.”

Justice Amy Coney Barrett asked Mississippi Solicitor General Scott Stewart, who defended the state’s abortion law, whether a decision in his favor would affect the cases cited by Sotomayor.

Stewart said cases involving contraception, same-sex marriage and sodomy wouldn’t be called into question because they involve “clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out.”

That reasoning didn’t satisfy Sotomayor, who said, “I just think you’re dissimulating when you say that any ruling here wouldn’t have an effect on those.”

Distinctions

Sharon McGowen of the LGBT group Lambda Legal told Bloomberg Law that cases like Lawrence v. Texas, the 2003 law that struck down laws prohibiting sodomy, and Obergefell v. Hodges, the 2015 case upholding same-sex marriage, “were built on the foundation of Roe and Casey and the court’s other reproductive rights cases.” So the idea that the Supreme Court could gut abortion rights is “cause for serious concern,” she said.

In an interview, David Cortman, of the conservative group Alliance Defending Freedom, said two things in particular distinguish abortion from those other privacy rights: the right to life and the states’ interest in protecting a child.

Cortman, whose group urged the justices to allow states to ban same-sex marriages, said those other rights may be just as wrong as the right to an abortion. But the fundamental interest in life that’s at issue in abortion means those other rights are probably not in any real danger of being overturned.

He noted that Justice Brett Kavanaugh even mentioned some of those rights when speaking about cases where the court has overturned unpopular rulings, suggesting there is little appetite on the court to reconsider them.

“If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent,” Kavanaugh said, citing Lawrence v. Texas, the case saying states can’t ban same-sex conduct, and Obergefell v. Hodges, regarding same-sex marriage.

‘Stark Departure’

Groups opposed to overruling Roe warned in briefs in advance of the argument that doing so could open the door to undermining other precedents.

Regardless of what the court has done in the past, backtracking on abortion now would represent a “sea change” in how the court approaches precedent, a group of LGBT groups told the justices.

They note that “even when the Court has reconsidered its constitutional rulings, it rarely—if ever—overrules precedent to take away previously recognized individual rights,” like they’d be doing here.

So overruling “Roe and Casey would represent a stark departure” for the court, the groups said, opening up other individual rights to attack.

Groups “against LGBT equality are eager to leverage this case” to undermine those victories, McGowan said.

McGowan said she doesn’t know of any states passing laws trying to copy the tactics of abortion opponents, including passing laws in order to convince a friendly Supreme Court to undo earlier cases. But she said other states could try to do so if those tactics are successful here.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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