If the Supreme Court decides to overturn or gut the decision that legalized abortion, some fear that it could undermine other precedent-setting cases, including civil rights and LGBTQ protections.
Overturning Roe v. Wade would have a bigger effect than most cases because it was reaffirmed by a second decision, Planned Parenthood v. Casey, three decades later, legal scholars and advocates said. The Supreme Court's conservative majority signaled in arguments last week they would allow states to ban abortion much earlier in pregnancy and may even overturn the nationwide right that has existed for nearly 50 years. A decision is expected next summer.
“In Roe, I think you have really just a particularly bad decision,” said Erin Hawley, senior appellate counsel for Alliance Defending Freedom, a conservative legal group. She did not expect a Supreme Court decision against Roe to affect landmark cases that legalized same-sex marriage and LGBTQ intimacy.
All of those, Kavanaugh said, were cases where the high court overturned precedent. If they had not “the country would be a much different place.” The reference to Brown v. Board of Education, meanwhile, was “offensive and disturbing,” Spital said. While justices often pose hypotheticals, comparing Roe to an 1896 court decision that “facilitated the legal dehumanization of Black people” crossed a line, he said.
The Obergefell case that gave LGBTQ people the legal right to marriage would also be safe because thousands of same-sex couples have relied on it to wed, and reliance like that makes courts less likely to make a major change, said Teresa Collett, a University of St. Thomas School of Law and director of its Prolife Center. “In short, I think overruling Roe and Casey will have zero impact on Lawrence and Obergefell as binding legal precedent,” she wrote in an email.
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