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- Associate Justice of the Supreme Court of the United States
Supreme Court Justice Brett Kavanaugh seemed to suggest earlier this week that landmark LGBTQ cases could support overturning federal abortion rights.
The Supreme Court heard 90 minutes of oral arguments Wednesday concerning a Mississippi law that would ban almost all abortions in the state after 15 weeks of pregnancy.
A majority of the court’s conservative justices appeared prepared to uphold the law and possibly overturn Roe v. Wade, the 1973 landmark decision holding that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.
The crux of Wednesday’s oral arguments centered around whether the justices should preserve or walk back on precedent, a court decision that is considered authority for subsequent cases involving similar or identical circumstances. The court’s liberal justices warned that reversing a decades-old ruling would politicize the country’s highest court.
However, citing two landmark gay rights cases — Lawrence v. Texas, which struck down state laws criminalizing consensual same-sex activity in 2003, and Obergefell v. Hodges, which resulted in the legalization of same-sex marriage across the United States in 2015 — Kavanaugh suggested that overruling the court’s previous opinions was standard procedure.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” Kavanaugh said. “If we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?”
The lawyers who argued in favor of gay rights in the landmark LGBTQ cases offered differing views on the validity of the argument by Kavanaugh, who 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 the Civil Rights Project director at GLBTQ Legal Advocates & Defenders, or GLAD, challenged Kavanaugh’s analogy.
“It’s a pretty thin interpretation of a reversal,” she told NBC News. “The reversals that Justice Kavanaugh is citing were about righting wrongs. They were centered on the rights of individuals and expanding constitutional protections to more individuals, not about taking rights away.”
When the court ruled in favor of same-sex couples in Obergefell v. Hodges, it effectively overturned its prior decision in Baker v. Nelson. That ruling centered on Jack Baker and Mike McConnell, who in 1970 were blocked from obtaining a marriage license. The high court rejected the men's case in 1972 without ever hearing oral arguments.
Bonauto argued against Kavanaugh’s comparison of reversing Baker v. Nelson to the potential reversal of Roe v. Wade.
“There was no briefing, there was no argument. They just essentially utterly dismissed the case for basically: ‘There’s no way same-sex couples seeking to marry have claim under the Constitution.’ The end,” she said.
LGBTQ advocates largely agreed with Bonauto, saying that the landmark gay rights decisions in Obergefell v. Hodges and Lawrence v. 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 advocacy group Lambda Legal, said of Kavanaugh’s argument in a statement Wednesday. “Those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite.”
But Paul Smith, who argued in favor of LGBTQ rights in Lawrence v. Texas — which overruled the court’s 1986 decision 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 bolster the argument for the court overriding precedent.
“We really, actually made those arguments ourselves in Lawrence because that was the whole point — we had to get rid of Bowers v. Hardwick,” Smith, who is now a professor at Georgetown University Law Center, said. “It is certainly one of the most prominent examples of an overruling that’s happened in the last 20 years.”
“People talk about stare decisis when they like the prior decision and not when they don’t,” Smith added, referring to the legal term for following what the court has ruled previously.
But during the oral arguments, Justice Sonia Sotomayor raised the question of whether overruling Roe v. Wade could open the floodgates for the court’s 6-3 conservative majority to overrule a broad swath of previous opinions it does not agree with.
“Why do we now say that somehow ... Roe and Casey are so unusual that they must be overturned?” Sotomayor said Wednesday, referring to Planned Parenthood v. Casey, a 1992 opinion that affirmed Roe v. Wade.
Later, during the oral arguments, Justice Amy Coney Barrett pressed Mississippi Solicitor General Scott Stewart, who was defending the Mississippi abortion limits, to address Sotomayor’s assertion.
Stewart said that several of the other cases Sotomayor cited, including the LGBTQ cases, produced “clear rules that have engendered strong reliance interests and that have not produced negative consequences,” in contrast to Roe v. Wade.
But if the court does overrule the landmark abortion law, some legal experts warn that previous rulings, including the landmark LGBTQ decisions, would be in danger.
“You can be sure that the Alliance Defending Freedom has the lawsuit ready to file the day after the Supreme Court issues an opinion broadly overruling Roe,” Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia Law School, said referring to a Christian law firm with a decadeslong track record of litigating against LGBTQ rights. “They will file the next day challenging Obergefell and even Lawrence. I have every confidence that that is what they’re to do.”
The court is expected to decide on the Mississippi abortion law early next summer.