In January 2006, Charles Fried was asked to testify before the US Senate about whether his former colleague Judge Samuel Alito would overturn the right to abortion if he were appointed to the Supreme Court.
As solicitor general of the United States back in 1989, Fried had argued on behalf of President Ronald Reagan that Roe v Wade, the landmark 1973 Supreme Court case that enshrined Americans’ right to terminate their pregnancies, was decided in error and should be overturned.
Since then, however, new case law had put the right to abortion on much firmer footing, causing Fried to change his stance. He told the senators that Alito as a judge had stayed “in the mainstream”, albeit “toward the right bank of the mainstream”, and that, while he could be wrong, he believed the new Supreme Court justice would respect precedent and let Roe stand.
“Well, my face is red on that one,” Fried recalls now to The Independent.
Last month, Justice Alito caused shockwaves when his draft ruling overturning Roe v Wade was leaked to Politico. Giving the majority’s opinion on a Mississippi law that had sought to restrict abortion, in a case known as Dobbs v Jackson, he wrote that “Roe was egregiously wrong from the start” and that the right to abortion was not “deeply rooted” in American history.
Such a ruling would reverse nearly 50 years of precedent and allow Republican state governments to effectively outlaw abortion across a broad swath of the US, curtailing the rights of tens of millions of women. Yet legal scholars and civil rights pioneers say Alito’s arguments could also allow the Supreme Court to strike down major LGBT+ rights such as the right to gay marriage, the right of gay spouses to government benefits and recognition, and even the right to gay sex.
“I’m terrified and people should be terrified,” says Jim Obergefell, whose lawsuit against the state of Ohio led to the Supreme Court ruling that gay marriage was protected by the US Constitution.
“This is a signal to people who are opposed to marriage equality, who are opposed to LGBT+ equality, who are opposed to progress, giving them actual words that they can use in a lawsuit to challenge something. And it’s a signal to judges in state and federal courts that if cases come before you using this argument, the Supreme Court might be on your side.”
A conservative ruling with radical ambitions
When the Supreme Court voted 7-2 in favour of “Jane Roe” in 1973, they did so on the basis of one of the most disputed clauses in the US Constitution,…