When the Supreme Court overruled Roe v. Wade, it swore up and down that its decision didn’t necessarily have any implications for other rights. “‘Abortion is a unique act’ because it terminates ‘life or potential life,’” Justice Samuel Alito wrote for himself and four of his Republican colleagues. He added that “our decision concerns the constitutional right to abortion and no other right” and that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But even as Alito wrote these words, Justice Clarence Thomas drafted a concurring opinion calling upon his Court to eliminate the rights to contraception, same-sex marriage, and the right “to engage in private, consensual sexual acts.” Justice Brett Kavanaugh, meanwhile, published his own opinion disclaiming any desire to come for anyone’s marriage or birth control.
All Americans now live in a land of uncertainty, somewhere between Thomas and Kavanaugh. In Alabama, the death of Roe meant that in vitro fertilization clinics closed after that state’s justices ruled that, at least under the state law governing wrongful deaths of children, a frozen embryo has the exact same rights as a child.
The clinics are now reopening after the Alabama state legislature, chastened by a nationwide backlash against the court’s decision, enacted legislation protecting IVF. The state supreme court’s original decision targeting IVF, however, contains some language suggesting they might rule that this new state law is unconstitutional. So it is unclear whether we’ve read the last chapter in this dispute over whether women in Alabama may receive IVF care.
This also isn’t the only way the right to privacy is under threat. Red states enacted several laws forbidding physicians from providing transgender health care to children experiencing gender dysphoria. Indeed, at this very moment, the Supreme Court is considering whether to reinstate such a law…
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