After scoring an initial victory in their mission to eviscerate women’s constitutionally protected right to obtain access to an abortion, some in the conservative movement have already explicitly moved on to attacking LGBTQ rights, which suggests they’re gunning for all your constitutionally protected rights — at least those not dealing with guns.
Former Texas Solicitor General Jonathan Mitchell, who designed Texas’ restrictive abortion law, evidently is not satisfied with the U.S. Supreme Court’s near-certain termination of Roe v. Wade, the court’s landmark 1973 decision in which it held that women have a constitutionally protected right to have an abortion.
In a brief filed last week with the court, Mitchell suggested he's coming for Lawrence v. Texas, the 2003 decision in which the Supreme Court ruled that laws that criminalize sodomy are unconstitutional, and Obergefell v. Hodges, the 2015 ruling in which the court concluded that the Constitution protects the rights of same-sex couples to marry. Lawrence and Obergefell marked historic progress in the fight for equality for all people, regardless of sexual orientation. Those decisions told all Americans that you can be a full person under the law, no matter your sexual orientation.
But Mitchell described Lawrence and Obergefell as being “as lawless as Roe” and suggested the court take a machete to those precedents. He described them as creating “court-invented rights to homosexual behavior and same-sex marriage.” He concluded, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”
This is the same attorney who said people should stop complaining about the Texas law he designed to restrict abortion because if women don’t want to worry about needing an abortion, they can just stop having sex.
One can imagine a scenario in which a woman has chosen to engage in unprotected (or insufficiently protected) sexual intercourse on the assumption that an abortion will be available to her later. But when this Court announces the overruling of Roe, that individual can simply change her behavior in response to the Court’s decision if she no longer wants to take the risk of an unwanted pregnancy.
So calm down, everyone. No need to be all up in arms about laws that restrict or outright ban abortion. Women can just stop having sex or use that 100 percent effective form of birth control, which — wait for it — doesn’t actually exist. Also, if Roe is in fact overturned and laws like Texas’ abortion law are upheld, women should absolutely avoid having a wanted pregnancy that results in a fetus with significant, potentially life threatening, abnormalities.
Women might also need to avoid having a wanted pregnancy that could create a medical emergency for themselves if Roe is overturned and states decide not to create exceptions for those situations. Mitchell didn't mention it, but women should also avoid being raped or the victims of incest, because there are no exceptions for pregnancies that result from those crimes in Mississippi’s and Texas’ laws.
Suddenly this all feels so easy: Let’s just change our behavior, other people’s criminal behavior and the realities of fetal and maternal health.
Mitchell’s complaint about Lawrence, Obergefell and Roe is, in part, that they’re based on judges, well, judging. The problem with cases that provide a constitutionally protected right for women to obtain abortions or for same-sex couples to marry, according to this view, is that the Constitution does not specifically grant those rights.
The Constitution is, in so many ways, a brilliant document that provides generations with guidance, but few bright-line, definitive answers. When the founders ratified the Constitution almost exactly 234 years ago, they provided us with a governing document that could never seek to specifically answer every potential legal question that our society would face.
When, almost 100 years later, the 14th Amendment, upon which Lawrence and Obergefell rely, was ratified, the drafters of that amendment again gave us broad counsel, but not always detailed answers. Protections for a citizen’s “privileges or immunities” or against the denial of a person’s “life, liberty, or property, without due process of law” or even against the denial of a person’s “equal protection” rights are not self-defining. They are guideposts, meant to protect future generations against intrusions and overreaches by the state.
On the theory that judges have gone too far in interpreting the Constitution, the goal for some conservatives is a rollback of landmark Supreme Court cases that provide vital guardrails to the freedoms and protections enjoyed by so many members of our society. And those activists may well be successful — at least in the short term.
If the court’s recent decision to allow Texas’ abortion law to go into effect taught us anything, it is that we cannot take for granted the court’s respect for cases providing us with protections. It feels inevitable that the court will either explicitly overturn, or significantly hollow out, Roe. The court’s rollback of its same-sex marriage decision is less certain, but in this moment, we shouldn’t have much confidence that the court will fight back against state laws that effectively discriminate against members of the LGBTQ community, particularly if the laws purport to protect religious freedoms.
This is, instead, the moment to fight in state legislatures and in Congress. This is the moment to fight against proposals to restrict our freedoms and hard-won rights. The court is unlikely to save us. The attack on reproductive choice isn’t the end of the assault on our freedom. It is merely the well-timed middle of a war in which the soldiers have likely found a sympathetic audience, the Supreme Court.