President Joe Biden on Wednesday suggested that if the Supreme Court’s Roe v. Wade decision is overturned and abortion rights are returned to the states, other rights could be next, including the right of LGBTQ students to attend school with straight kids.
In comments to reporters after delivering remarks on the economy, Biden addressed the leaked draft court majority opinion for Dobbs v. Jackson Women’s Health Organization authored by Justice Samuel Alito that would overturn Roe and Planned Parenthood v. Casey — two landmark abortion cases. In his draft, Alito argues that abortion rights are “not deeply rooted in the Nation’s history and traditions” and cannot be found in the text of the Constitution.
The president criticized Alito’s reasoning and made a slippery slope argument about how if “extreme” Republicans pass a law segregating LGBTQ children in schools, the court’s draft opinion would presumably allow that.
“This reminds me of the debate with Robert Bork. Bork believed the only reason you had any inherent rights is because the government gave them to you,” Biden told reporters.
Referring to his questioning of President Ronald Reagan’s Supreme Court nominee Robert Bork in 1987, Biden said, “I said, I believe I have the rights that I have not because the government gave them to me, which you believe, but because I’m just a child of God. I exist. I delegated, by joining this union here, to delegate some rights I have to the governments for social good.”
He claimed that Alito’s draft opinion rejects an “inherent right” to privacy and suggested that overturning Roe could lead to other important court precedents being overturned. An example he reached for was Griswold v. Connecticut, a 1965 case where the court ruled 7-2 that a constitutional right to privacy is inferred from the Bill of Rights and that this right prevents states from making the use of contraception by married couples illegal.
“Griswold was thought to be a bad decision by Bork and my guess is the guys on the Supreme Court now,” Biden said. “What happens if you have [a state 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?” Biden asked. “Because this MAGA crowd is really the most extreme political organization that’s existed in American history, in recent American history,” he said.
In his draft opinion, Alito answers Biden’s concerns, which were previously raised by Biden administration Solicitor General Elizabeth Prelogar. In her brief for Dobbs — the case concerning Mississippi’s 15-week abortion ban — Prelogar argued that overturning Roe could “threaten the Court’s precedents holding that the Due Process Clause protects other rights, including the rights to same-sex intimacy and marriage.”
Alito rejected this complaint. “This is not correct for reasons we have already discussed,” he wrote. “As even the Casey plurality recognized, ‘abortion is a unique act’ because it terminates ‘life or potential life.'” Alito emphasized that “abortion is ‘inherently different from marital intimacy,’ ‘marriage,’ or ‘procreation.'”
“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.