DENVER — While the Supreme Court has not made an official decision regarding Roe v. Wade, it has confirmed the authenticity of leaked draft opinion showing a majority of the justices poised to do so. Many Americans are now asking what a post-Roe country will look like and if other court decisions are also now on the chopping block.
As legal and political experts explained to Denver7, other currently recognized rights by the court — such as same-sex marriage, interracial marriage, and contraception access — rest on the same right to privacy as identified in Roe v. Wade. In his draft opinion, Justice Samuel Alito declares that “Roe was egregiously wrong from the start,” employing “exceptionally weak” reasoning. This has lead many to speculate that decisions such as Obergefell v. Hodges, which legalized same-sex marriage nationwide, could face a similar fate.
Jennifer Hendricks, a law professor at the University of Colorado, believes it could.
“The right to abortion is part of a modern edifice of constitutional rights that are usually grouped under the general concept of the right to privacy,” Hendricks explained. “The original modern case in that line was a case called Griswold v. Connecticut, which struck down the criminalization of contraception… [That] same line of cases protects the right to marry, which includes both Loving, the interracial marriage case, and Obergefell, the same-sex marriage case. The foundation for all of those precedents will be yanked out if anything remotely like this draft becomes the opinion of the court.”
In the draft opinion, Justice Alito appears to preempt this criticism.
“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Even still, Joshua Wilson, a professor of political science at the University of Denver, says this caveat will do little to prevent the decision from being cited by lawyers in future cases should it be issued.
“He tries to cordon off what he’s arguing and to say this only applies to Roe and can’t apply to other fundamental rights,” Wilson said. “That’s not the way the law works. Future lawyers and future cases can use the same sorts of arguments that he’s laying out here to go after other established fundamental rights.”
If Obergefell v. Hodges were to be overruled by the Supreme Court in the future — and the issue of same-sex marriage returned to the states — the exact implications for impacted couples in Colorado remain to be seen, according to Hendricks. Voters in Colorado approved a constitutional amendment that banned same-sex marriage in 2006, but that ban was struck down by a U.S. District Court in 2014 — about a year before the Supreme Court ruled in Obergefell.
Because the U.S. District Court’s decision leaned on the federal constitution, Hendricks says an overturn of Obergefell could resurrect state bans like that in Colorado.
“In that sense, Colorado would need to act affirmatively to protect the right to same-sex marriage if Obergefell were overruled,” Hendricks explained.
Given political attitudes in the state, Hendricks says preemptive action from state lawmakers to codify marriage equality in the state is likely. Colorado politicians. Last month, Governor Jared Polis signed the bill that guarantees abortion access and other reproductive rights in state statute.