Birth control, gay and interracial marriage, and more may be at risk if Roe v. Wade falls

Alexandra Martinez

May 5, 2022

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Monday’s leaked draft decision that revealed the U.S. Supreme Court will likely overturn Roe v. Wade has stoked fears that the scathing indictment of reproductive rights is also a harbinger of more restrictive rulings to come. At the heart of Roe v. Wade was that the “right to privacy” is embedded in the constitution, but if the result in the draft decision stands, the court’s ruling in Dobbs v. Jackson Women’s Health Organization could open the door for a redetermination of constitutional protections on civil rights, contraception, interracial marriage, same-sex marriage, and forceful sterilizations. 

According to Noreen Farrell, a gender justice expert and the executive director of Equal Rights Advocates, associate justice Samuel Alito’s draft denies that the due process clause of the 14th Amendment provides a fundamental right to privacy that protects a pregnant person’s freedom to have an abortion. Alito’s draft opinion explicitly criticizes 2003’s Lawrence v. Texas, which prevented states from criminalizing same-sex intimacy, and 2015’s Obergefell v. Hodges, which legalized same-sex marriage. In the draft, Alito says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.” 

“There’s a number of privacy decisions that are potentially at risk if other justices in the court do not rein in this decision,” Farrell said. “This case implicates decades of jurisprudence built under the right to privacy and equal protection clause. The impact of Roe v. Wade doesn’t end when the final decision is made in June.”

Advocates argue the draft decision in Dobbs is a glaring attempt at government control of people’s bodies while taking advantage of a growing number of extreme and restrictive conservatism laws across the country.

“This leak is extraordinary because it is significant in terms of who decided to leak it,” Farrell said.

Legal experts have hypothesized that the leak could have come from a conservative aide, eager to cement the extreme opinion and discourage a more moderate decision that would at least partially leave the door open for some abortion rights and preserve Roe as a precedent.

“The language and the tone of the initial draft really speaks volumes to the push of this court to the right,” Farrell said. “They must feel more support from more parts of the country than they have in the past.”

According to Farrell, there are at least six Supreme Court rulings that deal with the right to privacy that could be impacted by the decision to overturn Roe v. Wade:

• Griswold v. Connecticut was decided in 1965 and protects the ability of married couples to buy contraceptives without government restriction. Farrell says striking down Roe v. Wade is not just about abortion, because contraceptives could be next. According to data from The National Survey of Family Growth, for people between the ages of 15–49 who used contraception in 2018, 21% used pills, and 13% used external condoms and IUDs. 
• Obergefell v. Hodges, the 2015 opinion that legalized same-sex marriage, used the right to privacy and the equal protection clause to do so. Overturning Roe could open the door for states to test same-sex marriage laws. According to U.S. census data, in 2019 there were an estimated 980,000 same-sex couple households, and about 58% of those couples were married partners. For Grayson Schultz, a queer and trans writer and activist who coordinates care for Included Health Communities, the possibility is scary. 

“My partner and I are in a position where we’ve already started drafting up our wills,” Schultz said. “We want to make sure that everybody who is in a queer relationship takes precautions such as making advanced health care directives, so they can ensure that if marriage equality were struck down, that their spouse or partner can be able to access them in times of need.”

• Meyer v. Nebraska, a 1923 ruling that allows families to decide for themselves if they want their children to learn a language other than English, could also be implicated. In the midst of historic and racist book banning across the country, overturning Roe could open the door for states to try to outlaw children learning their family’s languages. According to 2016 data, 22% of children, more than 12 million, in the U.S. spoke a language other than English at home.  
• Skinner v. Oklahoma is a 1942 ruling that found it unconstitutional to forcibly sterilize incarcerated people. Striking down Roe could once again put incarcerated people at risk of sterilization. The U.S. has historically forcibly sterilized incarcerated people as a form of eugenics, sterilizing approximately 60,000 people deemed to have “undesirable traits.” Even recently, a jail in Tennessee offered reduced sentencing for people who consented to sterilization methods. Still in effect, however, is Buck v. Bell, a 1927 decision that decided it is legal to sterilize people who are deemed  “feeble-minded” or unfit to procreate.
• Stanley v. Georgia is a 1969 case that found a right to privacy around possession of pornography. If a state wants to outlaw pornography or certain forms of adult pornography, it could do so without the right to privacy, negatively impacting sex workers across the country, an industry with already few protections. 
• Loving v. Virginia is a 1967 landmark civil rights case that struck down state laws banning interracial marriages. Overturning Roe could invite the Supreme Court to redetermine states’ ability to ban interracial marriage. 

While Alito argues in the draft leak that, “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” there are widespread concerns about what this could mean for privacy in the future. 

“It would be an understatement to say it is a slippery slope, and we know that the same argument can be applied to other cases,” said Nancy Cárdenas Peña, the Texas director for policy and advocacy at the National Latina Institute for Reproductive Justice. “It just goes to show you how all of our movements and our struggles are connected.”

The Supreme Court’s official decision is expected to be announced by the end of June.

Alexandra Martinez