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MSNBC legal analyst Joyce Vance reviews what the document actually says and what it means.Īgainst that backdrop, the draft opinion, if finalized, could “send up a flare” to conservative activists, said Sharon McGowan, legal director at Lambda Legal. The leaked Supreme Court draft opinion that could overrule Roe v. Backers of those bills generally argue they’re needed to protect kids and the rights of parents. But especially over the past year there has been a wave of bills in state legislatures aimed at transgender youth sports and healthcare, as well as talking about LGBTQ issues in certain classrooms. LGBTQ rights have made rapid progress over the past decade, and public opinion overall has become much more supportive. Cases along those lines have been mostly about exceptions to anti-discrimination laws so far, Pierceson said, “but one could see potentially a broadening of the argument to the fact that maybe same-sex marriage laws are unconstitutional in the first place.” “If the right to privacy is deconstructed or is hollowed out, or is minimized, then those cases in particular have less standing,” Pierceson said.Ī challenge to same-sex marriage could come before the high court on religious liberty grounds, for example, such as someone arguing their religious faith prevents them from recognizing same-sex marriage. Still, the language and tone Alito uses overall could encourage more challenges, said Jason Pierceson, professor of political science at the University of Illinois, Springfield. The court’s three liberal justices appeared certain to be in dissent. Until now, the court has allowed states to regulate but not ban abortion before the point of viability, around 24 weeks. Only Chief Justice John Roberts seemed prepared to take the smaller step of upholding the 15-week ban, in essence overturning the court’s ruling in Casey, while leaving in place the right to an abortion in Roe. Casey, which itself moved beyond Roe’s initial trimester framework for regulating abortion.Īt arguments in December, all six conservative justices signaled they would uphold the Mississippi law, and five asked questions suggesting they supported overturning the right to abortion nationwide, leaving the issue up to individual states.
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The current Supreme Court abortion case specifically concerns a Mississippi law that bans abortion after 15 weeks - before the “viability” standard set in the 1992 case Planned Parenthood v. Casey, a key case that was less widely known, paved the way for some abortion restrictions - as long as they didn't meet the definition of an "undue burden." With help from Florida State law professor Mary Ziegler, we break it down in this LXplanation. States and the Department of Justice are waging court battles over the right to abortion that the Supreme Court outlined in Roe v. Obergefell, moreover, relies on the Constitution's Equal Protection Clause as well as the right to privacy. It stands in contrast to abortion, which is usually "a response to unplanned circumstances," Collett said. Thomas School of Law and director of its Prolife Center.Ĭourts are usually loath to undo that kind of precedent. Obergefell is different from Roe in that hundreds of thousands of same-sex couples have relied on it to wed and created legal bonds, like shared property, inheritance rights and “settled expectations about the future,” said Teresa Collett, a professor at the University of St. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” “We emphasize that our decision concerns the constitutional right to abortion and no other right,” the draft states. Hodges, which legalized gay marriage, are based at least in part on that same right to privacy.Īlito, in the draft opinion, explicitly states that the court is only targeting the right to abortion, not those other matters. Texas, which struck down sodomy laws criminalizing same-sex intimacy, and Obergefell v. Connecticut, which said that a right to privacy exists that bars states from interfering in married couples’ right to buy and use contraceptives.Ĭases like Lawrence v. The president said he believed the conservative justices on today’s court would, like failed Supreme Court nominee Robert Bork in 1987, disagree with the court’s ruling in Griswold v.
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“If the rationale of the decision as released were to be sustained, a whole range of rights are in question… it goes far beyond the concern of whether or not there is the right to choose.” Wade was published by Politico late Monday. President Joe Biden spoke Tuesday after a leaked Supreme Court draft opinion threatening to overturn Roe v.