Abortion in Ohio, Part 2: Even More Legal Rights Are on the Chopping Block

Experts say other unenumerated rights — like interracial and same-sex marriage or sexual privacy — could also be on the chopping block after the reversal of Roe v. Wade.

click to enlarge Abortion-rights advocates gather in Cincinnati in May 2022. - Photo: Mary LeBus
Photo: Mary LeBus
Abortion-rights advocates gather in Cincinnati in May 2022.

This story is part of CityBeat's and Cleveland Scene's feature package about what the June 24 reversal of Roe v. Wade means in Ohio. Read more stories in our abortion series.

As the United States wraps up Pride month and Juneteenth celebrations, there are questions about how the U.S. Supreme Court’s recent decision on abortion may affect additional human and legal rights.

Jen Dye, director for the Nathaniel R. Jones Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law, says overturning Roe v. Wade could open a door to other forms of oppression.

Roe was actually decided on this whole idea of the right to privacy, and even though on its face it was about abortion, really the court decided that the issue was about the right to privacy,” Dye says. “It’s kind of like if somebody shouted, ‘Fire!’ in a crowded building, the issue would be freedom of speech, but on its face it’s if somebody can shout, ‘Fire!’ in a crowded building.”

The right to privacy is an unenumerated right, Dye explains, which means it’s not explicitly stated in the U.S. Constitution.

“It’s well-established in a lot of case law and precedent that it is something we can imply and infer that we all have, even if it’s not explicitly stated,” she says.

In the Dobbs/Roe decision, Justice Samuel Alito cites other rights that Americans have enjoyed that are also unenumerated rights:
“There’s an erosion there,” Dye says. “Alito in his [then] draft opinion clearly lays out the groundwork to overturn anything that isn’t explicitly stated in the Constitution.”

In the June 24 Dobbs opinion, Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” He writes that other unenumerated rights are different from abortion rights because they do not involve the moral question of life, but he also says rights that are not explicitly stated in the Constitution must be “deeply rooted in the nation’s history and traditions.”

Dye says other unenumerated rights like interracial and same-sex marriage or sexual privacy are relatively new and apply to citizens that the country’s founders hadn't considered when drafting the document.

“Those responsible for the original Constitution, including the 14th Amendment, did not perceive women as equals and did not recognize women’s rights,” Sotomayor, Kagan and Breyer write in their Dobbs dissent. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”

Dye expands on that idea.

“I mean, the Constitution was written in the late 1700s,” she says. “At that time period, it was white men who owned property who counted. They were the only people who could vote, they were the ones who were considered citizens, if you were a person of color, you weren’t even considered human — you were property. Women, while you were considered human, you were still someone’s property. If we say we want to go back to what the Constitution was written as, that’s what the Constitution was written as.”

Approval of interracial marriage is far from “deeply-rooted” in our nation’s history, for example, with Loving v. Virginia decided in 1967. And yet, Alabama only narrowly voted to legalize interracial marriage in 2000, and national Gallup polling in 2002 showed 29% of Americans still opposed interracial marriage.

Loving served as precedent for same-sex marriage rights that were finally passed in 2015 through Obergefell. Since then, Ohio Republicans have proposed their own “Don’t Say Gay” legislation similar to Florida’s, which prohibits schools from mentioning queer gender identity or sexual orientation, along with other laws that chip at LGBTQ+ rights.

And Ohio already is passing laws that signal homophobic and transphobic priorities. The recently passed House Bill 151 bans trans youth from participating in school sports, requiring controversial gender-verification exams on children. The legislature approved the bill 56-28.

Additionally, multiple states are waging wars on birth control as they craft their own trigger bans on abortion care, including Missouri, Idaho and Louisiana.

In his concurring Dobbs opinion, Justice Clarence Thomas writes that additional rights-granting cases should be re-examined.

Dye warns that ongoing culture wars may give way to new laws that ignite old battles, and threatening the right to privacy by overturning Roe would give lawmakers the tools to get started now.

“Some people are saying, ‘Oh that’s alarmist,’ but it wasn’t too long ago when people were saying it’s alarmist to think they’d overturn Roe,” Dye says.

Maya McKenzie, media coordinator for Planned Parenthood Ohio, also is worried about the implications for the LGBTQ+ community.

“It obviously extends beyond the right to choose whether or not you would have an abortion,” McKenzie says. “But LGBTQ+ people, including transgender men and non-binary people, they can and do have abortions, just like anyone else.”

Maria Bruno, public policy director at Equality Ohio, testified against HB 598, the state’s latest abortion ban bill, saying it would be a disaster for LGBTQ+ Ohioans.

“At first glance, abortion rights might seem like a distinct legal issue from LGBTQ+ rights,” Bruno testifies in her opposition. “But LGBTQ+ people need this healthcare, and LGBTQ+ rights and abortion rights are tightly entwined together through case law precedent. Picking and choosing when legal precedent matters — and which foundational constitutional rights deserve preservation and which don’t — is a recipe for disaster.”

Dye says other human rights decisions could be forced back to the states and that it will be on voters to mobilize to maintain previously protected rights — even though many states like Ohio have been gerrymandered under Republican power.

“Those local and state elections are going to be that much more important in terms of policy of where you live,” Dye says. “It’s a lot easier to get state legislation through because state legislator terms are shorter.”

With Roe now reversed, CityBeat is exploring what comes next for Ohioans seeking abortion resources and reproductive care. Click below to read our in-depth stories about each topic.
Editor’s note: Some of the people and organizations quoted in this feature frame their abortion language around “women,” meaning a sex assigned at birth. But transgender men, intersex individuals, non-binary individuals and agender individuals also receive abortion care. We will continue to explore abortion issues that affect all individuals in future stories.

This feature is a collaborative effort by reporters and editors at CityBeat in Cincinnati and Cleveland Scene in Cleveland, including Sam Allard, Allison Babka, Madeline Fening, Vince Grzegorek, Gennifer Harding-Gosnell, Maggy McDonel, Ashley Moor and Maija Zummo.

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