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Q&A: What does an emboldened Supreme Court mean for future rights? An ISU professor weighs in

APTOPIX Supreme Court Abortion
Gemunu Amarasinghe
/
AP
Abortion rights protesters regroup and protest following Supreme Court's decision to overturn Roe v. Wade in Washington,, D.C. on Friday, June 24, 2022.

The U.S. Supreme Court officially reversed Roe v. Wade on Friday, declaring that the constitutional right to abortion upheld for nearly a half century no longer exists.

Writing for the court majority, Justice Samuel Alito said that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming that decision "must be overruled" because they were "egregiously wrong," the arguments were "exceptionally weak" and so "damaging" that they amounted to "an abuse of judicial authority."

Joining the Alito opinion were Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts, appointed by President George W. Bush, concurred in the judgment only.

Dissenting were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama.

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Meghan Leonard, an associate professor at Illinois State University who has studied the courts.

WGLT’s Sarah Nardi turned to Meghan Leonard, an associate professor at Illinois State University who has studied the courts, for perspective on the historic ruling. Leonard said the way the court went about issuing the decision suggests certain justices have been emboldened.

Leonard: What happened in 1973 is that the Supreme Court says the right to privacy they laid out in 1965, in a case called Griswold v. Connecticut, was strong enough to protect the decision of a woman and her doctor to have an abortion.

It was not a decision that was grounded in equal protection or other things that we might think about that are related to civil rights.

So when the Dobbs vs. Jackson got to the court today, what Justice Alito and those who joined his opinion said was that the Constitution does not say anything about abortion. (It also doesn't say anything about privacy, but here they're focusing on the issue of abortion.) Because it says nothing about abortion, we cannot read into the Constitution this right to abortion.

So, this right that has existed as understood as coming from the right to privacy in the Constitution for 50 years no longer exists.

WGLT: That seems to open the door for a reconsideration of many rights. If that's the case, what are the implications for a right to privacy?

Leonard: It seems the right to privacy could be gone.

The court could overturn Griswold, which did two things: One, it creates a right to privacy that is a Constitutional protection ... so that any state that doesn't have a right to privacy in their state constitution couldn't pass laws violating your right to privacy, because that would violate the federal Constitution.

Also from the Griswold decision, we get things like the right for non-married couples to access birth control; the right for LGBTQ folks to get married; the right for LGBTQ folks to not be discriminated against at work.

This could also have major implications for the right to privacy and the Fourth Amendment, in terms of government search and seizure. That protection was expanded after the Griswold decision because that right to privacy was read into the Constitution.

It seems like this is much, much bigger than the huge issue of the right to abortion.

Leonard: I would say so. There is a small part of what happened today that is about abortion access. There's a larger part of what happened today where the court says, 'You know, we're going to do what we want to do.'

Now, the folks who are happy with the outcome may be more likely to agree with other rights that the 6-3 court would overturn.

Thinking of the court as this powerful could have longstanding implications for the future, and Justice Thomas in his concurrence today made it very explicit that is the road he wants to go down.

Is it unusual to hear something like that from a Supreme Court justice that indicates future goals?

Leonard: Yes. Being as explicit as Justice Clarence Thomas was is unusual. Certainly justices do say, 'If this comes to us in the future, we might do this' or 'We're not answering this question today but in the future, we might.'

In their opinions, they tend to give hints or explain hypotheticals. But I think this, sort of, emboldened 6-3 majority has decided that they're not going to be incremental, they're not going to take small steps. Not only that, they're going to telegraph where they're going.

There's no reason for Justice Thomas not to do that when this majority is so clear that they are going to hand down massive decisions that make massive changes to our understanding of Constitutional law.

And they're going to do so without a lot of concern for the court's legitimacy, without a lot of concern for public opinion, because the structure of the court allows them to do that.

Trump made the campaign promise that he would appoint justices who would overturn Roe and here we are. That seems to fly in the face of the role of the Supreme Court as a nonpartisan entity. Does this worry you?

Leonard: The Supreme Court has always been a political court. They've always made political decisions; the justices are driven by ideology. None of that is new.

I think what's new about this decision is how bold the court went. They didn't take the (Chief Justice John) Roberts tack of slowly turning back Roe. They are really going out there and very clearly making a results-oriented decision.

If you read the Alito opinion... it is a decision looking for, or justifying an opinion that's already been made: The justices knew they were going to overturn Roe. They made that decision and his opinion is simply justifying that.

So, they're certainly very bold, very emboldened. What this could do to them in terms of legitimacy because of the general public support abortion right is really going to be interesting to see.

Now that Roe has been overturned, is there any path back to the Constitutionally-affirmed right to an abortion?

Leonard: We would have to amend the Constitution. That requires 2/3 of both houses of Congress and 3/4 of the states.

As I tell my students, I'm not sure we could get an amendment to Constitution that says the sky is blue.

NPR contributed to this report.

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Sarah Nardi is a WGLT reporter. She previously worked for the Chicago Reader covering Arts & Culture.
Lyndsay Jones is a reporter at WGLT. She joined the station in 2021. You can reach her at lljone3@ilstu.edu.
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