Last week, a majority of justices on the Supreme Court ruled that the right to an abortion does not exist in the Constitution and overturned nearly 50 years of judicial precedence which had been established in Roe v. Wade and Planned Parenthood v. Casey.
Rob Rosborough, a partner at Whiteman, Osterman, and Hanna, and editor of the New York Appeals blog, said this case, Dobbs v. Jackson Women’s Health Organization, is different because by overturning Roe, the court is taking away liberties rather than establishing new rights.
The court’s opinion, authored by Justice Samuel Alito, does not differ much from the draft decision which was leaked back in May. Alito argues that the right to an abortion is not explicitly laid out in the Constitution and is not rooted in history. In the opinion, Alito stresses that this ruling applies to just abortion. Chief Justice John Roberts had a unique vote because he did not argue to overturn the Roe and Casey precedent, but did argue to uphold Mississippi’s 15-week ban on abortion.
In the wake of the Dobbs decision, House Minority Leader Kevin McCarthy suggested that the Republican conference, should they retake the majority in November, would attempt to enact a nationwide ban on abortion. New York has codified the Roe decision into state law but has not enshrined the right in the state constitution. Rosborough said amending the state constitution would provide more protection to abortion access in the state and that the state constitution can add more rights from the “floor” the federal Constitution provides.
In his concurring opinion on Dobbs vs. Jackson Women’s Health Organization, Justice Clarence Thomas argued that the country’s highest court should revisit decisions in cases dealing with same-sex marriage, sexual relations between same-sex adult couples and contraceptive use.
Omar Gonzalez-Pagan, a senior attorney and health care advocate at Lambda Legal, told Capital Tonight that the recent actions by the Supreme Court should concern all people because the court’s conservative majority “has completely decided to get rid of years – decades – of precedence to constrain the rights of people and to really revolutionize, in a bad way, how our Constitution is interpreted.”
The decision in Roe argued that a right to an abortion existed in a right to privacy under the Due Process Clause of the Fourteenth Amendment to the Constitution. Justice Thomas is his opinion says that the Supreme Court should “reconsider all of this Court’s substantive due process precedents including Griswold, Lawrence and Obergefell.”
Gonzalez-Pagan stresses that the rights granted in Griswold (contraception), Lawrence (consenting sexual activity) and Obergefell (same-sex marriage) were not taken away with the Dobbs decision. Gonzalez-Pagan adds that New Yorkers' marriage rights are protected on the state level but an overturning of same-sex marriage on the federal level could mean the loss of benefits or recognition by the federal or different state governments.
New York state lawmakers are expected back in Albany on Thursday for an extraordinary session to handle gun safety legislation in response to an earlier ruling by the Supreme Court on the state’s concealed carry laws in New York State Rifle and Pistol Association vs. Bruen. It is unclear at this point if lawmakers will take up legislation like a proposed equality amendment to the state constitution in the wake of the Dobbs ruling.