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Justice with Jessica: SCOTUS Abortion decision could impact same-sex marriage and more

Abortion decision could impact same-sex marriage and more
Anna and Fran Simon look at their marriage license
Posted at 6:27 AM, Jun 03, 2022

DENVER — Anxiety is high among communities that could be impacted by the possible overturning of Roe v. Wade.

Roe protects a pregnant person's freedom to choose to have an abortion without excessive government restrictions.

There's a lot more to Roe than abortion, though. Some legal experts are concerned that if Roe is overturned, other Supreme Court decisions that hinge on the right to privacy, such as same-sex marriage, could be threatened.

Anna and Fran Simon's story

Anna and Fran Simon, the first same-sex couple to be married in Denver, are hoping for the best, but preparing for the worst.

"It's just another... stressor," Anna Simon said.

Before same-sex marriage was legalized and recognized in all 50 states, the Simons spent thousands on attorney's fees to secure just a few of the same legal protections other married couples could get.

Anna Simon said the process of changing her last name to Simon was especially burdensome.

"I had to get fingerprinted like a criminal and have a background check," Anna Simon said. "Make sure I wasn't changing my name to escape debt, for instance."

That's why they were so glad when the Supreme Court's decision in the Obergefell v. Hodges caused same-sex marriages to be recognized across the country.

"We and hundreds of thousands had worked so hard, and to see it become official was such a weight off of our shoulders," Anna Simon said.

But the couple embraced the news cautiously.

"I also immediately thought, 'We need to protect this hard-won victory because they're going to be coming after us trying to take that away,'" Fran Simon said.

Leaked draft of U.S. Supreme Court opinion

Politico published a leaked draft on May 2 of the SCOTUS Dobbs v. Jackson Women's Health Organization majority opinion that would explicitly overturn Roe v. Wade.

The opinion stated, in part: "We hold that Roe must be overturned... the constitution makes no reference to abortion... no such right is implicitly protected by any Constitutional provision including... the Due Process Clause of the 14th Amendment."

"The abortion cases all centered on this right to privacy and whether or not the Constitution provides that right to privacy," said Ryann Peyton, the president-elect of the Colorado Bar Association.

She said the Due Process Clause of the 14th Amendment was understood to imply a right to privacy in Roe v. Wade.

"In this case, that's what the justices are undoing," Peyton said. "What they're saying is there is no right to privacy in the Constitution, and, therefore, all of these cases that were decided on that particular merit aren't actually true."

What else could be impacted?

In the leaked draft, Justice Samuel Alito wrote out a list of cases linked to privacy rights that he claimed won't be impacted.

Among them:

  • The right to engage in private, consensual sexual acts from Lawrence v. Texas
  • The right to obtain contraceptives from Griswold v. Connecticut
  • The right to marry a person of the same sex from Obergefell v. Hodges

Peyton said it's difficult to know what the future holds for those cases, and that the overturning of Roe could still impact them one day.

"We thought we had settled a lot of these issues," Peyton said. "And even if they never actually become unsettled, the fact that they'll be re-litigated, the fact that it has started that ball rolling to have these conversations simply reintroduces that trauma to the community."

Moving forward

Fran Simon spoke with the couple's son about the leaked draft opinion. He asked her if their marriage would be "taken away."

"'Of course, I tell him, 'No, I don't worry.' But inside, yes, I'm worried," Fran Simon said.

The couple, who remains active in politics, said they'll keep marching, voting and donating to campaigns. Defending their relationship, though, becomes tiresome.

"You have to keep at it," Anna Simon said. "There's no stopping."

Their commitment to protecting same-sex marriage is unwavering, and they attribute that to their faith.

"We believe in Tikun Olam, repairing the world," Fran Simon said. "We want to make the world a better place and a world that we want to live in, and we want our son to have it better and future generations. So, you know, we focus on that and what we can do to make that happen."

The final SCOTUS decision could come in mid- to late June.