Days after several Pennsylvania Senate Democrats proposed legislation to codify the recently overturned Roe v. Wade decision, one senator is spearheading a more expansive measure to enshrine abortion and various sexual rights in the Pennsylvania Constitution.
State Senator Steve Santarsiero (D-Doylestown) issued a memorandum to colleagues on Tuesday asking them to co-sponsor his amendment. It would codify not only the 1973 Roe ruling that forbade states from prohibiting abortion but also the 2015 Obergefell v. Hodges decision disallowing bans on gay marriage. Other “privacy”-related rights Santarsiero wishes to write into the state constitution include those identified in the 1965 Griswold v. Connecticut ruling, which disallowed contraception bans, and in the 2003 Lawrence v. Texas decision, which barred sodomy laws.
“With its decision last week in the [Dobbs v. Jackson Women’s Health Organization] case, the United States Supreme Court did more than merely affirm Mississippi’s restrictive abortion law, by a 5-4 vote it overturned the court’s previous holdings in Roe and [in the Casey decision reaffirming it],” the senator wrote in his memo. “In doing so, it called into question a wide range of fundamental privacy rights that all Americans have come to take for granted. Indeed, Justice [Clarence] Thomas’s concurrence in Dobbs advocated exactly for that.”
Last week’s Dobbs opinion, authored by Justice Samuel Alito, does not itself threaten the court’s findings in any of the decisions Santarsiero mentioned besides Roe. Alito, in his opinion, made that explicit.
“The Court emphasizes that this decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
However, progressives have cited Thomas’s concurring opinion to raise the possibility that other liberal decisions could be revisited. Specifically, the George H. W. Bush-appointed jurist wants the court to scrutinize cases involving “substantive due process,” a doctrine protecting certain rights not specifically enumerated in the federal Constitution but nonetheless deemed by the Court to have the protection of the Fourteenth and Fifteenth Amendments. The court relied heavily on this concept in identifying a right to privacy in Roe.
“…[I]n in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.
As abortion advocates in the legislature draft legislation to keep the pregnancy termination legal in the Keystone State – which has no law that would trigger an abortion ban – pro-life forces continue to celebrate the ruling and to push for anti-abortion reforms in Pennsylvania.
“Don’t stop fighting here in Pennsylvania!” The Pennsylvania Family Council wrote in a Twitter post. “Many thought the overturning of Roe was impossible. We can make Pennsylvania a strongly pro-life state!”
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