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'Roe v. Wade' repeal raises questions about other constitutional rights

MICHEL MARTIN, HOST:

We're going to start today with another look at the impact of yesterday's historic Supreme Court decision to overturn Roe v. Wade, the nearly 50-year-old case which established the constitutional right to an abortion. Writing for the 6-3 majority in the case of Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito declared that Roe was, quote, "egregiously wrong from the start." And he added that the Roe decision was, quote, "on a collision course with the Constitution from the day it was decided." Now the issue of abortion is left up to each state to decide. Already, some have activated laws they had already passed to outlaw the procedure and, in some cases, to criminalize it.

But yesterday's decision has also raised questions about other constitutional rights that could be implicated by the high court's decision. Justice Clarence Thomas said as much in a concurring opinion, where he signaled rights he thinks the court should reconsider next. We wanted to know more about how that would work, so we called Melissa Murray. She is a constitutional law professor at NYU Law School, where she teaches courses on family law and reproductive rights and justice, and she's with us now. Professor Murray, welcome. Thank you for joining us.

MELISSA MURRAY: Thanks for having me.

MARTIN: I just want to go back to the decision yesterday. It was expected, due to the leaked draft opinion, which was an enormous story in its own right. But still, as somebody who's watched the court for years, I was wondering about your reaction to yesterday's opinion. Is there something in particular that stood out to you?

MURRAY: Well, I'll first say that it was not unexpected, not simply because of the leaked draft opinion that we all saw in May but because of November 2016, when this country elected Donald Trump, who vowed to appoint pro-life justices who would overrule Roe v. Wade, and he had three opportunities to do so. So the seeds of this were sown well before May, when we saw that draft opinion. But what stood out in that draft opinion to me is a very unusual footnote, footnote 41, which tries to link both contraception and abortion with the eugenics movement of the 1920s.

And, you know, it's an unusual footnote because it's entirely gratuitous, because, as you say, Justice Alito says that abortion is egregiously wrong because it's unmoored from constitutional text and not deeply rooted in the history and traditions of this country. So linking it to eugenics is entirely gratuitous. You don't need this for the logic of overruling Roe. And so the question is, why is it there? And I think that one of the reasons it's there is because it lays a foundation for discrediting also the right to contraception. The right to contraception was spearheaded by Margaret Sanger, who this eugenics narrative targets as someone who worked with the eugenics movement in the 1920s, and they are framing the understanding of contraception as though this were a racial injustice targeted toward minority communities.

And I think that's meaningful because where this court has previously overturned precedents in the past, it's often been in circumstances where doing so was necessary to remedy a racial injustice, and Brown v. Board of Education overruling separate but equal in Plessy v. Ferguson is the paradigmatic example. And so this association of contraception with eugenics and eugenic racism, I think, is the opening salvo in an attempt to discredit and possibly later overrule the right to use contraception.

MARTIN: To that end, Justice Thomas, who has not been known for participating broadly in oral argument at the court but nevertheless is considered one of the court's kind of most visible critics of Roe, agreed with the majority to overturn the case. But one of the things that's attracting a lot of attention now is that he wrote in a separate opinion that the Court should revisit other cases with the same, quote, "substantive due process," unquote, legal framework as Roe. Would you mind explaining what substantive due process is and why it's important to cases like Roe? And then, of course, I'm going to ask you, what other issues could this affect? You've already signaled that the right to contraception could be one.

MURRAY: Justice Thomas's critique of substantive due process is long-standing. Substantive due process is a theory that precedes from the 14th Amendment's guarantee of liberty. And the idea is that that broad grant of liberty is a substantive font of individual rights, rights that are not necessarily explicitly enumerated in the Constitution. They're implied in that broad understanding of liberty and the right to privacy, the right to an abortion, the right to marry, the right of parents to raise their children in the manner of their choosing, the right to contraception. All of those rights proceed from a theory of substantive due process grounded in that grant of liberty.

And what Justice Thomas says in this solo authored concurrence is that, yes, we have overruled abortion. We have overruled Roe v. Wade today. But the majority opinion actually went to great pains to sequester the question of abortion from the prospect of other unenumerated rights, like the right to marry, like the right to contraception. But Justice Thomas is unwilling to stop there, and he says that the court should reconsider whether these other substantive due process rights are actually legitimate. And in doing so, he's essentially inviting future challenges to rights of same-sex marriage, rights of contraception, rights of parents to raise their children in the manner of their choosing. All of those rights are underlaid by the same grant of liberty that Roe was underlaid by, and that has been found to be insufficient to root this in constitutional protection.

MARTIN: So before we let you go, I want to turn to the dissent in this case. In a joint dissent, the court's three - I don't know if you want to call them Democratic-appointed justices, liberal justices, whatever term you prefer, they wrote that the majority's opinion, quote, "calls into question this court's commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but grasping. In all those ways, today's decision takes aim, we fear, at the rule of law." Those are very strong words, and I'm interested in what stood out to you in this dissenting opinion.

MURRAY: They are strong words, and they are entirely deserved because this is a court that seems to have jettisoned respect for the rule of law. And I think to understand that more fully, you have to sort of zoom out and not focus entirely on this one opinion, on this one issue, abortion. This term, the court has been incredibly assertive in terms of advancing a more conservative agenda. Like, the day before the Dobbs opinion was announced, the court issued a massive ruling expanding the scope of the Second Amendment to allow for the public carrying of weapons with very limited oversight by state governments.

On Monday, the Monday before the Dobbs opinion was announced, they announced a major decision in a case regarding religious - or regarding funding for religious schools, a case that will have a - very real and important consequences for the separation of church and state and for public voucher programs for schools. And we still have a number of decisions that have not yet been announced. And we are waiting on a decision in West Virginia v. EPA, which will surely have important repercussions for the administration's ability to fight climate change as well as other administrative agencies that we rely on for the daily work of government.

We're also waiting for an opinion in a case involving whether prayer on the football field at a school is a violation of government speech or otherwise violates the First Amendment or is protected by the free exercise clause of the First Amendment. So this is a court that has a 6-to-3 conservative supermajority, and because they have the numbers, they have been moving incredibly quickly, incredibly aggressively, and we are all going to bear the impact of their conservatism.

MARTIN: That was Melissa Murray. She is a professor of constitutional law at NYU Law School, and she's the co-host of the "Strict Scrutiny" podcast. Professor Murray, thank you so much for joining us and sharing your expertise with us today.

MURRAY: Thanks for having me. Transcript provided by NPR, Copyright NPR.