Kavanaugh cites landmark gay rights cases in argument over abortion restrictions – .

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Kavanaugh cites landmark gay rights cases in argument over abortion restrictions – .


Supreme Court Justice Brett Kavanaugh appeared to suggest earlier this week that historic LGBTQ cases could support the cancellation of federal abortion rights.

The Supreme Court heard 90 minutes of oral argument Wednesday regarding a Mississippi law that would ban nearly all abortions in the state after 15 weeks of pregnancy.

The majority of the court’s conservative justices appeared ready to uphold the law and possibly overturn Roe v. Wade, the landmark 1973 decision holding that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.

The crux of Wednesday’s oral arguments revolved around whether judges should preserve or reverse a precedent, a court ruling considered authoritative for subsequent cases involving similar or identical circumstances. Liberal court judges have warned that overturning a decades-old ruling would politicize the country’s highest court.

However, citing two landmark gay rights cases – Lawrence v. Texas, which struck down state laws criminalizing consensual homosexual activity in 2003, and Obergefell v. Hodges, which resulted in the legalization of same-sex marriage in the United States in 2015. – Kavanaugh has suggested quashing previous court opinions was standard procedure.

“If you think about some of the most important cases, the most important cases in the history of this tribunal, there is a series where the cases set aside the previous one,” Kavanaugh said. “If we think the previous precedents are gravely in error, if so, why then does the history of this court’s practice in these cases not tell us that the correct answer is in fact a return to the position. neutrality and – and not stick to those precedents in the same way that all the other cases haven’t? “

Lawyers who have advocated for gay rights in landmark LGBTQ cases have expressed differing views on the validity of the argument of Kavanaugh, who was appointed in 2018 by then-President Donald Trump.

Mary Bonauto, who advocated on behalf of same-sex couples in Obergefell v. Hodges and now the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders, or GLAD, took issue with Kavanaugh’s analogy.

“That’s a pretty thin interpretation of a reversal,” she told NBC News. “The reversals that Justice Kavanaugh cites were meant to right the wrongs. They focused on the rights of individuals and the extension of constitutional protections to more individuals, not the removal of rights. “

When the court ruled in favor of same-sex couples in Obergefell v. Hodges, he effectively set aside his earlier decision in Baker v. Nelson. This decision centered on Jack Baker and Mike McConnell, who in 1970 were barred from obtaining a marriage license. The High Court dismissed the men’s case in 1972 without ever hearing any oral arguments.

Bonauto objected to Kavanaugh’s comparison of the Baker v. Inversion. Nelson to the potential reversal of Roe v. Wade.

“There was no briefing, there was no discussion. They simply dismissed the case altogether for fundamentally, “There is no way that same-sex couples looking to get married have a constitutional claim. “The end,” she said.

LGBTQ advocates largely agreed with Bonauto, saying the landmark gay rights rulings in Obergefell v. Hodges and Lawrence v. Texas “reflected the growing societal understanding of our common humanity.”

“At that, we say, NOT IN OUR NAME,” Sharon McGowan, legal director of LGBTQ rights group Lambda Legal, said of Kavanaugh’s argument in a statement Wednesday. “These landmark decisions regarding LGBTQ have EXPANDED individual freedom, not the other way around. “

But Paul Smith, who argued for LGBTQ rights in Lawrence v. Texas – which overturned the 1986 court decision in Bowers v. Hardwick – suggested that Kavanaugh’s comparison was valid. Smith said that to win Lawrence v. Texas, he also needed to strengthen the argument for the court precedent.

“We really, in fact, made these arguments ourselves in Lawrence because that was the whole point – we had to get rid of Bowers v. Hardwick, ”said Smith, who is now a professor at Georgetown University Law Center. “This is certainly one of the most striking examples of a rejection that has occurred over the past 20 years. “

“People talk about stare decisis when they like the previous decision and not when they don’t like it,” Smith added, referring to the legal term to follow what the court ruled previously.

But during oral argument, Judge Sonia Sotomayor raised the question of whether the annulment of Roe v. Wade could open the floodgates on the court’s Conservative 6-3 majority to overrule a wide range of previous opinions she disagrees with.

“Why are we now saying that somehow… Roe and Casey are so unusual they have to be knocked down?” Sotomayor said Wednesday, referring to Planned Parenthood v. Casey, a 1992 opinion that asserted Roe v. Wade.

Later, during oral argument, Justice Amy Coney Barrett urged Mississippi Solicitor General Scott Stewart, who was defending the limits of abortion in Mississippi, to respond to Sotomayor’s claim.

Stewart said that several of the other cases cited by Sotomayor, including LGBTQ cases, produced “clear rules which created strong trust interests and which did not produce negative consequences”, unlike Roe v. Wade.

But if the court overturns the landmark abortion law, some legal experts warn previous rulings, including landmark LGBTQ rulings, would be in jeopardy.

“You can be sure the Defending Freedom Alliance has the lawsuit ready to go the day after the Supreme Court issued an opinion broadly dismissing Roe,” said Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia Law. School, to a Christian law firm with decades of experience in litigation against LGBTQ rights. “They will file the next day challenging Obergefell and even Lawrence. I have every confidence that this is what they are to do. “

The court is expected to rule on Mississippi’s abortion law early next summer.

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