Robert Oliver and Mark Heller hold hands, draped in flags, as they celebrate the Supreme Court ruling on same-sex marriage on June 26, 2015, in West Hollywood, California. Photo by David McNew | Getty Images
WASHINGTON — Advocates told Congress on Thursday that a U.S. Supreme Court decision overturning a landmark abortion rights case is likely only the beginning, and could be followed by similar action by the high court on same-sex marriage, contraception and more.
Witnesses at a U.S. House Judiciary Committee advised that to prevent that from happening, Congress should enshrine in law the rights the Supreme Court has ruled Americans are guaranteed as part of the 14th Amendment’s liberty clause.
Justice Clarence Thomas, writing in June on the abortion rights case, said the court should reconsider three other cases — those that allow Americans to determine if and how they use contraception, legalize same-sex marriage and prevent the government from interfering in private consensual adult sexual relationships.
Those cases — Griswold v. Connecticut, Obergefell v. Hodges and Lawrence v. Texas, respectively — all rely on the same substantive due process precedents that justices ruled last month no longer protect the right to terminate a pregnancy, in Dobbs v. Jackson Women’s Health Organization.
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Melissa Murray, law processor and faculty director of the Birnbaum Women’s Leadership Network at New York University School of Law, told the House Judiciary Committee that, while no other justices joined Thomas’ opinion, “it would be a mistake to dismiss” him calling for those three cases to be reconsidered.
“Like many of his past opinions advocating for the destruction of fundamental liberty and privacy rights, Justice Thomas is signaling that the goalpost has moved,” Murray testified.
But the current Supreme Court, or a future court with a similar majority of conservative justices, might not focus solely on undoing those three cases, Murray told the committee.
The Supreme Court opinions in the same lineage as two prior abortion rulings, Murray said, began “in 1923 with Meyer v. Nebraska recognition of the right of parental autonomy” and go through the 2015 case that legalized same-sex marriage.
The right to interracial marriage, decided by the Supreme Court in the Loving v. Virginia case in 1967, also exists in that line of reasoning.
Georgia Democratic Rep. Hank Johnson asked Murray why Thomas, “would exclude court review of that due process right.” Thomas is in an interracial marriage, and other critics have also asked why he did not cite the case in his opinion.
Murray said she was “confused” about why that case wasn’t included in “Justice Thomas’ long laundry list of rights to be overturned, but it surely would be there.”
“Could it be that he himself enjoys that right conferred under Loving?” Johnson asked. Thomas, who is Black, is married to a white woman.
“It would not be the first time someone offered freedom for me, but not for thee,” Murray responded.
Same-sex marriage plaintiff
Jim Obergefell, the plaintiff in the Obergefell v. Hodges case that legalized same-sex marriage nationwide in June 2015, urged the panel to pass legislation through Congress to prevent the court from undoing that right as well as others.
He told the story of how when his husband, John Arthur, was dying nine years ago of ALS, or Lou Gehrig’s disease, hospital staff in Ohio didn’t have to recognize their marriage from Maryland.
“Make no mistake, Ohio harmed us,” he said. “Even with our marriage license in hand, doctors, hospitals and others could … bar me from John’s room, from making decisions on his behalf.”
“John was nearing the end of his life and they had the right to ignore a dying man’s most important relationship, to ignore any request or decision John and I made as husbands. Is that moral? Is that just? Is that right?,” Obergefell said.
After his husband died, Obergefell testified, they continued to be unequal, as Ohio wouldn’t put his name as the surviving spouse on Arthur’s death certificate.
Sarah Warbelow, legal director for the Human Rights Campaign, told the panel the Supreme Court’s majority opinion on abortion, drafted by Justice Samuel Alito, is “terrifying.”
“It suggests that the court does not have respect for the decisions that it has made, nor for advancing the rights of the people of the United States,” she said.
Defense of Marriage Act
Judiciary panel Chair Jerry Nadler, a New York Democrat, asked witnesses if Congress should repeal the Defense of Marriage Act, a 1996 law that said states aren’t required to recognize a same-sex couple’s marriage from a state where those unions are legal.
The Supreme Court struck down section three of the law, which said the federal government didn’t need to recognize those marriages for the purpose of federal benefits, such as Social Security or veterans’ benefits. That case didn’t legalize same-sex marriages, however.
Nadler noted he has introduced legislation to undo the law, sometimes referred to as DOMA.
Rep. Pramila Jayapal, a Washington state Democrat, said during the hearing that as a woman of color who has had an abortion, is in an interracial marriage and has a transgender daughter, the Supreme Court’s ruling on abortion and the possibility of a revocation of more constitutional rights “is a direct threat to me, my loved ones and most importantly to millions of people across this country who face one or more of these many threats.”
Jayapal noted she’s introduced a bill with California Democratic Rep. Mike Thompson to ensure access to contraception.
But she asked witnesses to explain how the Supreme Court overturning a fundamental right that two prior courts ruled was enshrined as a constitutional right under the 14th Amendment will affect Americans in the future.
“It very much encourages state legislatures to try to pass laws to undermine and undo these precedents,” Warbelow said.
Alito majority opinion
Ohio GOP Rep. Jim Jordan, ranking member on the House Judiciary Committee, argued it was unlikely the Supreme Court would undo other constitutional rights in future cases, citing Alito’s majority opinion that he wrote for himself, Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
Jordan continued reading from the Alito opinion in the abortion case, which said those five justices held “that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Murray, however, said later during the hearing, in response to a question from Missouri Democratic Rep. Cori Bush, that the 14th Amendment — drafted during Reconstruction that followed the Civil War — was primarily concerned with eradicating the “very things that distinguished slavery from freedom, among them the absence of bodily autonomy and control over procreation.”
“They knew about forced birth as a means of expanding the slave population in the period before the Civil War, so they were responding to this,” Murray testified. “They also wanted to correct the injustice of having no family integrity, of lacking control over your children, of being ineligible for civil marriage.”
The drafters of the amendment, Murray testified, didn’t explicitly list those rights “because they were viewed to be captured in that grant of liberty.”
Alito’s opinion in the June abortion case says nothing about those elements of the amendment, she continued.
Traveling across state lines
Jordan also rebuked House Democrats for setting up floor votes Friday on two bills addressing abortion access.
The first bill, called the Ensuring Access to Abortion Act of 2022, would ensure patients can travel across state lines to access abortion in the places where it remains legal.
The second bill, the Women’s Health Protection Act of 2022, would ensure patients have access to abortions throughout the country.
Nevada Democratic Sen. Catherine Cortez Masto tried to pass a similar travel bill through the U.S. Senate on Thursday as the House Judiciary Committee hearing was ongoing.
Oklahoma GOP Sen. James Lankford objected to her unanimous consent request, blocking the bill from passing.
Cortez Masto argued the legislation is necessary, saying “what legislators are doing across the country to restrict women from traveling is just bluntly unconstitutional.”
Just proposing a bill to ban patients from traveling out-of-state to access abortion, Cortez Masto said, is having a “chilling effect” on health care providers as well as patients.
“In my state, we are already seeing that these proposals are having a chilling effect on my providers, who are worried about offering quality abortion care in the face of potential lawsuits,” she said from the U.S. Senate floor.
“And in Montana, reproductive health clinics are even limiting care to instate residents only,” Cortez Masto continued. “Imagine traveling hundreds of miles for essential health care, only to be turned away for fear of a lawsuit.”
The bill, which did not pass, would have made it “crystal clear” that states cannot prosecute women who travel for abortion, or the health providers operating in states where the procedure remains legal, or anyone who helps a woman travel out of a state that bans or heavily restricts abortion.
Montana Republican Sen. Steve Daines spoke out against the legislation, calling it “radical.”
“Rather than use this opportunity to protect life, very soon the Senate Democrats will try to pass a very extreme abortion bill,” he said.
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