Rights to contraception and marriage are in danger if Roe v. Wade draft holds, Biden warns
A draft Supreme Court decision obtained by Politico that proposes an end to Roe v. Wade would be a “radical” move by the court, calling into question the right to privacy that also undergirds access to contraception and marriage equality, President Joe Biden said on Tuesday.
The 98-page draft decision was confirmed as authentic by the Supreme Court on Tuesday, which stressed that the draft “does not represent a decision by the Court or the final position of any member.” Chief Justice John Roberts has ordered an investigation into the leak of the document.
“If this decision holds, it’s really quite a radical decision,” Biden told reporters before boarding Air Force One en route to Alabama. “It would mean that every other decision related to the notion of privacy is thrown into question.”
The draft decision, written by Justice Samuel Alito, is assumed to have been written after a preliminary voice vote on the case of Dobbs v. Jackson Women’s Health Organization, a case surrounding a Mississippi law that would ban abortions after 15 weeks of pregnancy.
The draft goes further than upholding the Mississippi law by entirely overturning Roe v. Wade, the 1973 law that guaranteed abortion as a constitutional right.
Roe and the cases that have upheld it since “must be overturned,” the draft decision reads. “Roe was egregiously wrong from the start.”
The 1973 decision upheld that women had a constitutional right to privacy that extended to their decision to continue with a pregnancy, up until the point that a fetus could viably survive outside of the womb.
It followed on a decision years earlier called Griswold v. Connecticut, which also found that the right to privacy implicit in the Fourteenth Amendment prevented governments from banning the use of contraception.
The same principle was key in Obergefell v. Hodges, the 2015 decision legalizing same-sex marriage nationwide.
Biden referenced both of these rights as endangered by the leaked draft decision.
“If the rationale of the decision as released would be sustained, a whole range of rights are in question. A whole range of rights,” Biden continued. “And the idea that we’re letting the states making those decisions, localities make those decisions, would be a fundamental shift in what we’ve done.”
“I hope there are not enough votes for it,” he added.
In several passages of the draft, Alito says the decision to overturn Roe would not undermine other unenumerated rights that are “deeply rooted in history.” He states that cases on which the original Roe decision relied — such as Griswold — would be safe. But he does not reference Obergefell or Lawrence v. Texas, a 2003 decision that prevented bans on sodomy.
In his remarks to the press, Biden suggested that states may begin challenging gay rights with new laws designed around the new Dobbs precedent.
“Does this mean that in Florida they can decide they’re going to pass a law saying that same sex marriage is not permissible? It’s against the law in Florida?” Biden asked. “It’s a fundamental shift in American jurisprudence.”
This story was originally published May 3, 2022 at 12:08 PM with the headline "Rights to contraception and marriage are in danger if Roe v. Wade draft holds, Biden warns."
