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 quote the full
force of the federal government to mitigate the ruling's 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.
It also means asking the president of the 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.
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.
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.
But in his concurring opinion, Justice Clarence Thomas said that
the road decision should prompt the court to reconsider all of this
court's substantive due process Precedents.
Anti 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 Y U 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 UN enumerated rights
in the Constitution. Thanks so much for having me Jeff, 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 on enumerated rights and 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 right that
are nowhere enumerated explicitly in the Constitution, but that were
nonetheless take for granted as Americans 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?
Yeah, One of the most shocking things about Dobbs opinion was that
it said that these UN enumerated 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 18. 68 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 in the privacy of your home.
And even the right to contraception. Well about that. I mean, lots
of people have looked at that occurring opinion and and read it as
justice Thomas inviting legal challenges on both of those issues,
Contraception and gay marriage. How do how do you view it?
That's exactly right. And in fact, you know, justice. Thomas is a
track record of doing this. That she, 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 litigants 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
Uh, kind of pegged off on right. So many of the lower court judges
are former Thomas Clark's 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.
So big picture. Then what does overturning Roe v. Wade mean for other
enumerated rights that have been protected by other Supreme Court
decisions? I think that the magnitude of this cannot be overstated,
because if the formula that the court is advancing here
Is the test of to be recognized and on enumerated 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 imperil.
Are there 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?
I don't think so, because it's so unimaginable right prior to the
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 with 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 saying
We want to actually get at the heart of same sex marriage itself.
Yoshino is a professor of constitutional law at the Y U Law School.
Thanks again for your time and for your insights. Thanks so much,