Decisions on same-sex marriage, contraception could be threatened by abortion ruling

Stephen Parlato of Boulder, Colo., holds a sign that reads "Hands Off Roe!!!" as abortion rights advocates and anti-abortion protesters demonstrate in front of the Supreme Court on Dec. 1, 2021.
John Fritze

WASHINGTON – When the Supreme Court hands down its ruling next year in Mississippi's blockbuster challenge to Roe v. Wade the bulk of the decision will be focused on interpreting what the Constitution says – or doesn't say – about abortion.

But lurking just below the surface of that already fraught debate are questions about other rights experts say could be implicated if the high court overturns its landmark Roe decision, including access to contraception and the legality of same-sex marriage.

That’s because the legal principles that the Supreme Court said in 1973 are the basis for the constitutional right to abortion are the same ones it relied on to recognize other rights not explicitly noted in the Constitution but understood by many to be between the lines.

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"There are huge stakes on the question of the right to abortion but that’s only part of it," said David Gans with the liberal Constitutional Accountability Center. "There's a giant question about does the 14th Amendment protect basic, fundamental rights even though they’re not explicitly laid out in the Bill of Rights or in another part of the Constitution."

A majority of the justices signaled during nearly two hours of argument this week that they are prepared to shift the way the court has viewed abortion for more than a generation, potentially not only upholding Mississippi’s ban on the procedure after 15 weeks of pregnancy but perhaps overturning the Roe v. Wade decision itself.

Mississippi says the high court could overturn Roe without relitigating other rights.

"These are cases that draw clear rules: You can't ban contraception, you can't ban intimate romantic relationships between consenting adults," Scott Stewart, Mississippi’s solicitor general, told the court about the potential fallout of abandoning Roe. "None of them involve the purposeful termination of a human life."

But that isn’t universally accepted, even on the right. Texas Right to Life encouraged the court this year to reconsider same-sex marriage when it looks at abortion. The group's brief targeted two watershed Supreme Court decisions, among others, the 2015 ruling in Obergefell v. Hodges that legalized same-sex marriage nationally and the 2003 ruling in Lawrence v. Texas that invalidated state prohibitions on sodomy.   

"This is not to say that the court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe," the group argued. "But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread."

An anti-abortion protester holds a cross outside the U.S. Supreme Court on Dec. 1 as justices consider state restrictions on the procedure.

The Constitution doesn’t explicitly guarantee a right to abortion, but a 7-2 majority in Roe held that the 14th Amendment’s protection of "liberty" includes the right to terminate a pregnancy. Several of the justices in that case drew on another landmark opinion decided eight years earlier that legalized contraception for married couples.

In Griswold v. Connecticut, the Supreme Court invalidated a law that forbid contraception, finding the Bill of Rights created "zones of privacy" for married couples. 

The potential for a legal fight over contraception in a post-Roe world may be particularly high, experts say. That’s because contraception was at the heart of the 2014 Hobby Lobby case in which the court ruled companies with religious objections cannot be forced to offer insurance for certain birth control methods they equate with abortion.

But access to contraception isn’t the only right not specifically included in the text of the Constitution that could be in play. The court in 2015 cited Griswold, Lawrence and other cases and found the 14th Amendment requires states to license same-sex marriages.

During the court's occasionally heated arguments this week, Associate Justice Sonia Sotomayor asked about the fate of those decisions if Roe is overturned. A lot of accepted constitutional rights, she noted, are not written into the nation's founding document. 

Would those rights also be in jeopardy in some future case, she asked.   

Demonstrators rally outside the Supreme Court ahead of arguments in Dobbs v. Jackson Women's Health Organization, challenging a Mississippi abortion law that would ban elective abortions after 15 weeks.

"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," said Sotomayor, who was nominated to the court by President Barack Obama in 2009. "I fear none of those things are written in the Constitution."

Stewart said those decisions were different in part because they set clear boundaries – a state can’t ban contraception for adults or can’t prohibit same-sex marriages – and that those rules have proven workable. And marriage broadly – if not same-sex marriage specifically – is deeply rooted in the nation’s tradition and history, he said. 

Abortion, Stewart told the justices, has by contrast vexed courts for decades. 

"He was drawing the substantive distinction that the right to abortion is qualitatively different from these other rights," said O. Carter Snead, law professor at the University of Notre Dame.

That’s because abortion, Snead and anti-abortion advocates say, involves ending a life. That assertion, however, immediately runs into another vexing question. 

"The issue of when life begins has been hotly debated by philosophers since the beginning of time," Sotomayor noted. 

But Snead said the idea that Roe’s potential demise would lead to other rights being overturned is more of "a rhetorical strategy than a doctrinal analysis." That’s partly because, he said, states would have to pass a law to ban contraception or same-sex marriage – likely a tall order politically even in many of the nation’s reddest states.

"I am not aware of any such efforts currently," he said, "and am quite skeptical that there are plans to pursue such state action in the future."

Stewart and Sotomayor debated that very question during arguments. 

"Do you think that no state is going to think otherwise, that no people in the population aren't going to challenge those cases in court?" Sotomayor asked.

"Your honor," Stewart responded, "we'll always have a diversity of views."

Sotomayor shot back: "That's the point."