Supreme Court decision on Roe v. Wade puts other rights at risk

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• Geoff Bennett:

  It is good to be with you. Democrats on Capitol Hill are urging President Biden to take immediate action to protect abortion rights around the country. In a new letter 34 Senate Democrats implored him to use, "the full force of the federal government to mitigate the rulings impact." And today Democratic Senator Elizabeth Warren said pregnant women need help now, and that more resources should be sent to states where abortion is still legal.

• Sen. Elizabeth Warren, D-Mass.:

  It also means asking the president of United States to make abortion as available as possible with the tools he has including medication abortion, including using federal lands as a place where abortions can occur.

• Geoff Bennett:

  Many are worried that other landmark court decisions could be overturned next, including the right to contraception and to same-sex marriage, which the Supreme Court legalized seven years ago today. Republican Senator Lindsey Graham today brushed off those concerns.

• Lindsey Graham, R-S.C.:

  Alito I think set the right tone. He said nothing in this decisions puts those cases at risk. The reason he decided that Roe v. Wade was wrongly decided is because it deals with the potential for life. These are the privacy issues like contraception do not deal with the potential for life.

• Geoff Bennett:

  But in his concurring opinion, Justice Clarence Thomas said that the Roe decision should prompt the court to reconsider all of this Court's substantive due process precedents. And he named the three landmark decisions that established those rights.

  Joining me now to discuss the prospects for those cases and the rights they established being overturned is Kenji Yoshino, He's a Professor of Constitutional Law at the NYU Law School.

  It's great to have you with us. And there are rights that we as Americans exercise on a regular basis that are not spelled out in the text of the Constitution. So give us a sense, help us understand more about the unenumerated rights in the Constitution?

  Kenji Yoshino, New York University School of Law: Right. Thanks so much for having me, Geoff. And it's a wonderful place to start because I think many Americans feel like if it's not written down in the Constitution as a right, we don't have that right. But in fact, the Ninth Amendment says that there are unenumerated rights in the Constitution. And those include things that we take for granted every day like the right to vote, the right to marry, the right to travel. These are all rights that are nowhere enumerated explicitly in the constitution but that we nonetheless take for granted as Americans.

• Geoff Bennett:

  And the words history and tradition are mentioned over and over in this week's Supreme Court decisions, not just on abortion rights, but also gun control. And that raises the question of whose history? Whose tradition, how does the Roberts Court interpret those two issues?

• Kenji Yoshino:

  Yeah, one of the most shocking things about Dobbs' opinion was that — it's said that these unenumerated rights will only be respected if they are deeply rooted in this nation's history and traditions. And so it essentially said that if the framers of the 14th Amendment in 1868 didn't recognize the right and question that the right didn't have constitutional existence, and so that's what leads Justice Thomas and that concurrence, to see an opening to say, well, maybe we'll get rid of not just the right to abortion, but also the right to same-sex marriage, the right to sexual intimacy and the privacy of your home, and even the right to contraception.

• Geoff Bennett:

  Well, we'll about that, I mean, lots of people have looked at that occurring opinion and read it as Justice Thomas, inviting legal challenges on both of those issues, contraception and gay marriage. How do you view it?

• Kenji Yoshino:

  That's exactly right. And in fact, you know, Justice Thomas has a track record of doing this, that he, you know, seems like he's speaking to his colleagues. But in fact, what he's doing is he's speaking to the lower court and to litigate, the litigant file these suits that's happened in the abortion cases. And then the lower courts, take up those claims and write opinions that the Supreme Court can then kind of peg off on, right? So many of the lower court judges are former Thomas clerks themselves. And so there's a kind of system that he's got going there in order to invite litigation to bring these test cases before the court.

• Geoff Bennett:

  So big picture then, what does overturning Roe v. Wade mean for other unenumerated rights that have been protected by other Supreme Court decisions?

• Kenji Yoshino:

  Yes, I think that the magnitude of this cannot be, you know, overstated. Because if the formula that the court is advancing here is the test of, to be recognized and unenumerated right has to be deeply rooted in this nation's history and traditions. Well, same-sex marriage is not deeply rooted in this nation's history and tradition. Contraception is not so deeply rooted. And so all of those rights are now freshly imperiled?

• Geoff Bennett:

  Are their cases sort of making their way through the legal system now on both of those issues, contraception and gay rights that could reach the court in the next term or the term after that?

• Kenji Yoshino:

  I don't think so, because it's so unimaginable, right, prior to this decision, that those cases would be challenged. So there may be a case that was not brought with the intent to overrule same-sex marriage, but was intended to create a religious exemption from having to say celebrate same-sex marriage by supplying a cake or by supplying services of that kind, right? But those cases can now quickly be converted to say, we want to actually get at the heart of same sex marriage itself.

• Geoff Bennett:

  Kenji Yoshino is a Professor of Constitutional Law at the NYU Law School. Thanks again for your time and for your insights.

• Kenji Yoshino:

  Thanks so much, Geoff. Great to be with you.