Supreme Court Justice Brett Kavanaugh appeared earlier this week to suggest that landmark LGBTQ cases could support the abolition of federal abortion rights.
The Supreme Court on Wednesday heard 90 minutes of oral arguments about a Mississippi law that would ban almost all abortions in the state after 15 weeks of pregnancy.
A majority of the court’s conservative judges appeared to be prepared to uphold the law and possibly overturn Roe v. Wade, the 1973 landmark decision that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.
The core of Wednesday’s oral arguments centered on whether judges should maintain or go back on precedent, a court ruling that is considered the authority for subsequent cases involving similar or identical circumstances. The court’s liberal judges warned that reversing a decades-old ruling would politicize the country’s highest court.
But citing two landmark cases of gay rights – Lawrence v. Texas, which overturned state laws criminalizing same-sex activities in 2003, and Obergefell v. Hodges, which resulted in the legalization of gay marriage throughout the United States in 2015 – Kavanaugh suggested , that breach of the Court’s previous rulings was standard procedure.
“If you think about some of the most important cases, the most consequential cases in the history of this court, there are a number of them where the cases set a precedent,” Kavanaugh said. “If we think the previous precedents are seriously wrong, if that’s why the story of this Court’s case law in these cases does not tell us then that the correct answer is in fact a return to the position of neutrality and – and not sticking to these precedents in the same way that all the other cases did not? ”
The lawyers who argued for gay rights in the landmark LGBTQ cases offered different views on the validity of Kavanaugh’s argument, which was appointed in 2018 by then-President Donald Trump.
Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges and now serves as director of the Civil Rights Project at GLBTQ Legal Advocates & Defenders, or GLAD, challenged Kavanaugh’s analogy.
“It’s a pretty thin interpretation of a twist,” she told NBC News. “The twists and turns that Judge Kavanaugh quotes were about correcting the clock. They were centered on the rights of individuals and the extension of constitutional protection to more individuals, not on deprivation of rights.”
When the court ruled in favor of same-sex couples in Obergefell v. Hodges, it effectively overturned its earlier decision in Baker v. Nelson. That decision centered on Jack Baker and Mike McConnell, who in 1970 were blocked from obtaining a marriage license. The High Court dismissed the men’s case in 1972 without ever hearing oral arguments.
Bonauto argued against Kavanaugh’s comparison of reversing Baker v. Nelson with the potential reversal of Roe v. Wade.
“There was no briefing, there was no discussion. They essentially dismissed the case for fundamental:” There is no way that same-sex couples seeking marriage have claims under the Constitution. “The conclusion,” he said. she.
LGBTQ advocates broadly agreed with Bonauto, saying that the landmark decisions on gay rights in Obergefell v. Hodges and Lawrence against Texas “reflected the growing societal understanding of our common humanity.”
“To that we say, NOT IN OUR NAME,” Sharon McGowan, legal director of the LGBTQ law firm Lambda Legal, said of Kavanaugh’s argument in a statement Wednesday. “The landmark LGBTQ decisions EXPANDED individual freedom, not the opposite.”
But Paul Smith, arguing for LGBTQ rights in Lawrence v. Texas – which overturned the 1986 court ruling in Bowers v. Hardwick – suggested that Kavanaugh’s comparison was valid. Smith said that in order to win Lawrence v. Texas, he also had to strengthen the argument for the court’s overall precedent.
“We actually put forward these arguments in Lawrence ourselves because that was the whole point – we had to get rid of Bowers v. Hardwick,” said Smith, now a professor at the Georgetown University Law Center. “It is certainly one of the most prominent examples of a breach that has occurred in the last 20 years.”
“People talk about stare decisis when they like the prior decision, and not when they do not,” Smith added, referring to the legal term to follow what the court has previously ruled.
But during the oral arguments, Judge Sonia Sotomayor raised the question of whether a breach of Roe v. Wade could open the floodgates for the court’s 6-3 conservative majority to override a large number of previous statements that it does not agree with.
“Why do we now say that somehow … Roe and Casey are so unusual that they have to be overthrown?” Sotomayor said Wednesday, citing Planned Parenthood v. Casey, a 1992 statement confirming Roe v. Wade.
Later, during the oral arguments, Judge Amy Coney Barrett pressured Mississippi’s attorney general Scott Stewart, who defended Mississippi’s abortion boundaries, to address Sotomayor’s claim.
Stewart said several of the other cases Sotomayor cited, including the LGBTQ cases, produced “clear rules that have spawned strong trust interests and that have not yielded negative consequences,” unlike Roe v. Wade.
However, if the court overrides the landmark abortion law, some legal experts warn that previous decisions, including the landmark LGBTQ decisions, would be in jeopardy.
“You can be assured that Alliance Defending Freedom has the trial ready to file the day after the Supreme Court issued a statement that largely ignores Roe,” said Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law School, referring to a Christian law firm with decades of experience in litigating LGBTQ rights. “They will report the next day and challenge Obergefell and even Lawrence. I have full confidence that this is what they are to do.”
The court is expected to rule on the Mississippi abortion law early next summer.
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