The US Supreme Court’s decision to strike down the constitutional right to abortion provides a roadmap for ending other freedoms related to marriage, sexuality and birth control, three progressive justices on the court said on Friday.
Friday’s ruling, five for and four against and written by conservative Justice Samuel Alito, overturned the Roe v. Wade in 1973, which legalized abortion across the country.
The three liberal Supreme Court justices condemned the ruling as “catastrophic” and legally flawed, since it would allow states to compel a woman to carry a pregnancy to term and, in some states, “to give birth to the child of her rapist”.
They also explained the threat that the sentence poses to other rights that the court has recognized in decisions over decades under a legal principle called “substantive due process” that arises from the 14th Amendment of the United States Constitution, which prevents states to infringe on freedoms without “due process of law.”
These precedents safeguarded a number of personal freedoms, such as contraception in a 1965 decision, interracial marriage in 1967, same-sex intimacy in 2003, and gay marriage in 2015.
“We cannot understand how anyone can trust that today’s opinion will be final in these cases,” the justices wrote.
The justices advised the public to be skeptical of the court majority’s assertion that the ruling should not be taken as a basis for questioning other “non-abortion” precedents.
“Think of someone telling you that Yenga’s tower just won’t topple,” the dissenting justices wrote, referring to a set of precariously stacked wooden blocks.
In fact, Thomas asked the court to definitively set aside those substantive due process precedents.
In future cases, Thomas said, “we should reconsider all of this court’s precedents on substantial due process,” specifically mentioning rulings protecting rights to contraception, same-sex intimacy and same-sex marriage.
President Joe Biden told Americans to prepare for new threats to established rights from conservatives on this court.
“I have warned how this decision puts at risk the broader right to privacy for all,” Biden said. “… The right to make the best decisions for your health. The right to use contraception, of a married couple in the privacy of her bedroom.”
Although substantive due process rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity, and equality. The Roe ruling recognized that the right to personal privacy under the Constitution protects a woman’s decision to terminate her pregnancy.
Conservative critics of the substantive due process principle have said the rule improperly allows unelected judges to make policy decisions that are best left to elected lawmakers.
Friday’s ruling came in a case related to a Mississippi law that bans abortions after 15 weeks of pregnancy.
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