Pathways_SU22_Digital Magazine

ENVIRONMENTAL & SOCIAL JUSTICE

What Happens if Roe v. Wade... ...continued from page 77

curtail LGBTQ+ rights. “This is about a lot more than abortion,” he said. “What happens if you have states change the law saying that children who are LGBTQ can’t be in classrooms with other children? Is that legit, under the way the decision is written? What are the next things that are going to be attacked?” Esseks also brought up the vulnerability of Loving v. Virginia, which found that laws banning interracial marriages violated the 14th Amendment. “They talk about it as the right to marry a person of a different race,” Esseks said, clarifying that each ruling granted marriage rights for protected classes but none guaranteed marriage outright. “So it’s not a broad right. It’s a very specific right.” That distinction really matters in civil rights law, said Esseks. The justices who dissented in the Obergefell case on same-sex marriage “would have said there may be a right to marry, but it doesn’t cover same sex relationships.” Esseks fears Alito’s decision would set a precedent and would not guarantee the right to marry between people of different races, people of the same sex or for a person behind bars.

servative court. In October 2020, Justices Clarence Thomas and Sam - uel Alito indicated that they believed that marriage equality should be overturned . When the court declined to hear the appeal of Kim Davis, a former Kentucky clerk who turned away a same-sex couple seeking a marriage license, the two justices hinted that marriage equality was wrongly decided and should have been left to states, leaving many be- lieving that the court would overturn marriage equality if given the chance “Obergefell enables courts and governments to brand religious ad- herents who believe that marriage is between one man and one wom- an as bigots, making their religious liberty concerns that much easier to dismiss,” Thomas wrote. Legal experts are concerned about the potential impacts of language in the draft opinion and its intersection with the 14th Amendment, which granted Americans equal protection under the law. Decisions in cases including Lawrence, Obergefell and Griswold v. Connecticut — which established a right to access contraception — relied on a right to privacy typically defended by the 14th Amendment’s right to due process. But in the draft, Alito argues that right is not explicitly mentioned in the Constitution. Privacy is not mentioned in the Constitution, but the court has previously ruled that the right to due process covers rights otherwise not expressly covered. Alito’s writing indicates those cases could be called into question, said Anthony Michael Kreis, who teach - es constitutional law and employment discrimination at the Georgia State University College of Law. “The danger of overturning Roe is in the fact that you’re tipping a major leg of the right-to-privacy stool out from underneath it,” he said. “If you take that critical component piece out, then it opens all these other things up to a greater degree of susceptibility.” Right to privacy also plays a huge role in the legality of bans on gen- der-affirming care for trans youth. If Alito’s draft opinion language on privacy is preserved and a lawsuit ever reached the high court, Kreis is worried that rights to bodily autonomy and personal health care deci- sion-making would again be threatened. “I think there’s an imminent danger to trans rights in a post-Roe world,” he said. President Joe Biden, speaking to reporters on Wednesday , May 4, raised similar concern that the draft opinion in its current form would

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78—PATHWAYS—Summer 22

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