Right to contraceptives, same-sex marriage, and interracial marriage next on the Supreme Court’s chopping block

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The Constitution

First, let us talk about the Constitution. As the House Judiciary Republicans reminded us this week, the word “abortion” is not in the Constitution.

Neither is the word “women.” The white men who wrote the Constitution did not think women were people, deserving of the same rights as men. Women couldn’t vote or own property. Couldn’t hold office, nor choose their husbands. Parts of America still allowed marital rape into the 1990s, defining rape as forced sexual intercourse by a male with a “female not his wife.”

If you happened to be a Black woman at the founding of America, your rights were even more nonexistent. Black women could be raped with impunity, their children born into the same shackles of slavery as their mother—even if their father was a white slave owner.

The men who believed this was the way of a justly ordered world wrote the Constitution, which is still viewed by many Americans as a rigid instruction manual to form the best nation possible.

Roe v. Wade

The roots of Roe v. Wade can be found in Griswold v. Connecticut (1965). The case involved an 1873 Connecticut statute that banned the use of “any drug, medicinal article, or instrument for the purpose of preventing conception.” Estelle Griswold, the Executive Director of Planned Parenthood in Connecticut, opened a birth control clinic in New Haven in 1961 to provide married women with contraceptives. She and her partner, gynecologist C. Lee Buxton, were arrested 10 days after opening.

  • Keep in mind, Griswold and Buxton were giving out birth control pills (approved by the FDA in 1960) to women. For decades prior, men faced no penalty for distributing or obtaining condoms. In fact, the government gave American troops condoms for free during the Second World War to use while engaging prostitutes. Would Griswold and Buxton have been arrested for handing out condoms? Likely not. So what’s the difference? Armed with the pill, a woman has just as much physical power to veto reproduction as a man. Griswold and Buxton were handing out equality.

The law they were convicted of violating is known as a Comstock law, referring to anti-vice Christian activist Anthony Comstock. Following the Civil War, Comstock was so revolted by ads for birth control that he went on a crusade against anything he considered “obscene, lewd, or lascivious”—prohibiting the mailing of material pertaining to contraceptives, the prevention of venereal disease, anatomy textbooks, and even racy letters. Congress enshrined his campaign into federal law, and states followed.

The Supreme Court ultimately ruled 7-2 that married couples are guaranteed the right of privacy (personal liberty) that covers their use of contraceptives like birth control pills. The majority, led by Justice William Douglas, argued that the marital privacy right was implied by the Bill of Rights—a constitutionally protected personal liberty despite not being specifically enumerated in the Constitution.

Justice Douglas contended that the Bill of Right’s specific guarantees have “penumbras,” created by “emanations from these guarantees that help give them life and opinion.” In other words, the “spirit” of the First Amendment (free speech), Third Amendment (prohibition on the forced quartering of troops), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general “right to privacy” that cannot be unduly infringed.

As with abortion, the right to privacy is not found in the Constitution. However, privacy is key to many of the rights enumerated by the Constitution, as Elie Mystal explains (in “Allow Me to Retort”):

Many of the rights explicitly protected in the Constitution don’t make sense unless this unenumerated right to privacy is also protected. What good is a protection from unreasonable searches if there is no protection from being unreasonably monitored? What good is the right to form an association, if the FBI can just wiretap any meeting it doesn’t like? What freedom do we really have if the government can shove a camera up your hooha to see if there’s any funny business going on?

It took seven more years for the Supreme Court to extend this right to privacy to unmarried couples (Eisenstadt v. Baird), eight years for the court to recognize a constitutional right to abortion in the first trimester (Roe v. Wade), and 27 years for the court to allow abortion up until viability and define unacceptable abortion restrictions (Planned Parenthood v. Casey).

Alito’s draft

The fact of the matter is that Griswold and Roe rely on privacy rights to legalize contraceptives and abortion. While this got the job done, it ignores a more obvious route to legalize abortion and give women control over their own bodies: the Equal Protection Clause. In other words, the argument that restrictions on the right to abortion constitute unconstitutional sex discrimination.

UCLA Law Review: Equality arguments for abortion rights range widely but share certain core concerns. Sex equality arguments ask whether abortion restrictions are shaped solely by the state’s interest in protecting potential life, or whether such laws might also reflect constitutionally suspect judgments about women. For ex­ample, does the state act consistently to protect potential life outside the abor­tion context, including by offering prenatal care and job protections to women who want to become mothers? Or is the state selective in protecting potential life? If so, might abortion restrictions reflect traditional sex-role stereotypes about sex, caregiving, or decision-making around motherhood?

Equality arguments are also concerned about the gendered impact of abortion restrictions. Sex equality arguments observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engen­dered by childbearing and childrearing. Sex equality arguments ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women, or whether the state has proceeded with indifference to the impact of its actions on women. Liberty arguments focus less on these gendered biases and burdens on women.

The late Justice Ruth Bader Ginsburg believed the Equal Protection Clause to be the more legally sound method of protecting abortion rights, writing: “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”

This oversight (or, rather, deliberate decision by the Supreme Court of old not to give women equal status to men) allows Justice Samuel Alito to strike down Roe V. Wade and Planned Parenthood v. Casey on the grounds that “privacy” is not found in the Constitution.

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. …And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

…guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion

While one can argue Griswold, Roe, and subsequent cases should have focused on the Equal Protection Clause, that is no guarantee that today’s conservative majority would not invent cause to exempt abortion under any statute. Indeed, Alito briefly mentions the Equal Protection Clause in his draft opinion, saying “[t]he regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.”

Right to contraceptives

Alito targeted the right to privacy in his draft opinion striking down Roe and Casey, opening the way for other “rights” based on the same privacy arguments to similarly be overturned. The first of these, as discussed above, is Griswold and Eisenstadt—guaranteeing the right to birth control for married and unmarried women. It is not much of a leap to go from “women have no right to choose not to give birth” to “women have no right to control their reproductive cycle,” after all.

This isn’t hypothetical. Republican states have already advanced bills meant to limit access to birth control. Just days after Alito’s draft leaked to the public, Louisiana lawmakers on a State House of Representatives committee approved a bill that would not only classify abortion as homicide, but would also criminalize in vitro fertilization and forms of birth control.

Right to engage in private, consensual sexual acts

Alito specifically mentions two other Supreme Court decisions that protect rights not “deeply rooted in this Nation’s history and tradition” (as he asserts abortion is not). One of these is Lawrence v. Texas (2003), in which a 6-3 court held that laws criminalizing same-sex sodomy are unconstitutional.

In 1998, officers responded to a dangerous weapon call at the apartment of John Geddes Lawrence Jr. in Houston, Texas. Upon entering the premises, the cops found Lawrence and a male acquaintance having anal sex in the bedroom. They were arrested and charged with having “deviate sex” under Texas’ “Homosexual Conduct” law (which is still in the state’s legal code).

Like Roe and Griswold, the Lawrence majority held that Texas’ law violated the Constitution’s right to privacy.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions…

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime…

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

To overturn Roe because the right of privacy is not guaranteed is to unwind a spool of thread that leads directly to Lawrence.

Right to same-sex marriage

The other case explicitly mentioned by Alito as on the “deeply rooted in history” chopping block is Obergefell v. Hodges.

The case’s abbreviated title comes from Jim Obergefell and John Arthur’s lawsuit seeking to have Ohio recognize their same-sex marriage obtained in Maryland, but the plaintiffs of six lower-court cases were included in the Supreme Court’s arguments.

Justice Anthony Kennedy authored the majority opinion (pdf), joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”

As we’ve seen, the conservative majority is on the verge of taking one of these “right[s] to personal choice”—procreation—away. How long until the others follow?

Note: Alito’s dissent in Obergefell previewed his draft opinion overturning Roe. Namely, that same-sex marriage is not “deeply rooted” in history:

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradition.’” And it is beyond dispute that the right to same-sex marriage is not among those rights…

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.

Right to interracial marriage

At first glance, it may seem like the right to interracial marriage is not related to abortion. However, courts and commentators place Loving in the line of “privacy” cases that begins with Griswold (the right to contraceptives) and in turn led to Roe v. Wade. Undermining one undermines all.

Loving centers on the anti-miscegenation law of Virginia in the 1950s. Mildred Loving, a mixed race woman, traveled to Washington D.C. in 1958 to marry her high school sweetheart, Robert Loving—a white man. A few weeks after returning to Virginia, local police arrested the Lovings and charged them with violating Section 20-58 and Section 20-59 of the Virginia Code. The couple was forced to leave the state.

It took nearly a decade, but in 1967 the Supreme Court unanimously struck down Virginia’s law, finding that the freedom to marry is a fundamental liberty protected by the Constitution:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.

Again, we see a “liberty” that did not exist at the time of the founding fathers; a liberty that is not “deeply rooted in history.” We also see an analog to Obergefell and Lawrence, the discrimination of the Virginia statute not far from the discrimination of laws prohibiting same-sex marriage and same-sex intimate relations.

Finally, looking back where we began: the Constitution. Just as the word “women” is not found in the Constitution, the idea of a woman is not found in Alito’s draft. There is only “the womb”—the generic vessel outside of which the fetus cannot survive.

Alito, like many conservatives, ignores the human carrying the fetus, ignores the way it was conceived (one in five women in the United States experienced completed or attempted rape during their lifetime), ignores the dangers in carrying it to term (the maternal mortality rate for 2020 was 23.8 deaths per 100,000 live births in America; only Colombia, Latvia, Mexico, and Costa Rica have a higher maternal death rate), and ignore the difficulties after birth—for the woman (America is the only industrialized nation without mandated paid maternity leave) and the child (11.6 mil­lion chil­dren, or 16% of all kids nation­wide, were liv­ing in pover­ty in 2020).

As described by Ruth Bader Ginsburg in 1988, the Constitution is a “document of governance for and by white, propertied adult males”. Reading Alito’s draft opinion, it is hard to imagine that the conservative majority aims to do anything but return our society to this “original” state of being.