Don’t believe the claims that other rights are in jeopardy if Roe v. Wade falls.
By The Wall Street Journal Editorial Board, May 4, 2022
First, they ban abortion. Next will be a contraception ban. Then a ban on same-sex and even interracial marriage. Soon we will all be living in “The Handmaid’s Tale.”
That’s the parade of horribles that Democrats and the media are trying to sell Americans after the leak of a draft Supreme Court opinion that would repeal a constitutional right to abortion.
If Roe v. Wade falls, it “would mean that every other decision related to the notion of privacy is thrown into question,” President Biden warned Tuesday. “Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible?” If we can borrow a word he likes, the President is peddling disinformation.
The press is full of similar pearl-clutching about which precedent the Supreme Court might strike down next. Is it Obergefell (2015), which enshrined gay marriage? Griswold (1965), which overturned a state law prohibiting married couples from buying contraceptives? What about even Loving v. Virginia (1967), which guaranteed interracial marriage?
The correct answer is none of the above, as Justice Samuel Alito’s draft takes pains to emphasize. The leaked opinion is explicit about distinguishing Roe and its 1992 legal revision, Planned Parenthood v. Casey, from cases on unrelated social topics.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the draft says. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”
It’s true that those past decisions have been criticized by conservatives. Griswold is where the Court said the Bill of Rights has “emanations” that create “penumbras,” a phrase long lampooned by the right. Justice Anthony Kennedy’s opinion in Obergefell asserted that the Constitution guarantees rights for free Americans to “define and express their identity.” Justice Antonin Scalia’s dissent compared that line to “the mystical aphorisms of the fortune cookie.”
Yet unlike Roe, both of those decisions have established themselves as durable precedents with broad public acceptance. A Gallup poll in 2019 found that 92% of Americans believed using birth control to be “morally acceptable.” That was up three points since 2012, and it included 90% of the respondents who identified as conservative or very conservative.
On gay marriage, 70% of people told Gallup last year that the law should treat such unions no differently than traditional ones. That’s up from 58% the year Obergefell came down. As for Loving, Gallup says 94% support black-white marriages.
That stands in contrast to abortion, which remains a contested moral and political issue. As Justice Alito’s draft opinion points out, even Roe acknowledged that the state has a legitimate interest in protecting “potential life.” There’s a reason that thousands of Americans have spent nearly 50 years enduring the January cold in Washington at the annual March for Life.
In 1975 Gallup found that 21% of Americans said abortion should be always legal, 22% never legal, and 54% legal only in certain circumstances. Last year the figures were 32% always legal, 19% never, and 48% sometimes. Whatever the High Court thought it was doing in Roe and again in Casey, it didn’t come close to settling the debate. And judges are ill equipped to draw the distinctions in abortion policy that a plurality of Americans say they want.
In the marriage cases, there are also what the Court calls “reliance interests” at stake. Hundreds of thousands of Americans are married to people of the same sex. The Supreme Court isn’t going to invalidate those unions and disrupt so many lives. The same goes for interracial marriage. By the way, Justice Clarence Thomas is married to a white woman.
Roe also stands apart on what Justice Alito’s opinion calls “workability” grounds. Roe has continued to inspire a mass of litigation as modified by Casey’s “undue burden” test. No one really knows what that burden is, so states bring case after case to contest it. By contrast, Obergefell, Griswold and similar rulings have not been challenged by what Justice Scalia called “give-it-a-try” litigation.
Democrats don’t want Americans to know all this because their political goal is to frighten them into believing that Justice Alito is some black-robed Pharisee bent on invading their bedrooms. It’s simply not true. Repealing Roe would merely return abortion policy to the states and democratic debate. That’s all.