Nancy Northup is the president and chief executive of the Center for Reproductive Rights. Rachel B. Tiven is the chief executive of Lambda Legal.
We represent the organizations that won leading Supreme Court cases in recent years on sexual and reproductive rights: Obergefell v. Hodges in 2015, which secured legal protections for the marriage of same-sex couples, and Whole Woman’s Health v. Hellerstedt in 2016, which struck down Texas’s attempt to use sham health regulations to shut down 75 percent of the state’s abortion clinics.
President Trump has taken sharp aim at the rights affirmed in those cases. During the campaign, he attacked the Obergefell opinion and repeatedly and unambiguously promised to put justices on the Supreme Court who would overturn Roe v. Wade. According to the president, it’s the government, not each individual, that should hold the power to decide who can get married and whether women can terminate a pregnancy.
In a post-election interview on “60 Minutes,” Trump reaffirmed that Roe v. Wade should be reversed and then deflected questions about his view of the Supreme Court’s marriage equality decision. He declared the issue “already settled,” explaining: “It’s law. It was settled in the Supreme Court. It’s done.” Was this a tactic to divide and conquer? To throw under the bus the tens of millions of American women who have had an abortion and hope marriage equality supporters would stand by in silence?
Perhaps the president simply does not understand the foundations of these constitutional law decisions. Whatever the reason for the president’s view of what is and is not settled Supreme Court precedent, the fact of the matter is that the court cannot reverse the cases guaranteeing access to safe and legal abortion and leave recognition of lesbian, gay, bisexual and transgender rights unharmed.
Obergefell and Whole Woman’s Health are part of a long line of Supreme Court cases elucidating the bedrock principle of our individual rights guaranteed by the 14th Amendment: that highly personal decisions about our family and personal lives — decisions central to our equal dignity and rights of conscience — are for each of us, not the government, to decide.
One of the earliest cases began almost a century ago, when Nebraska, swept up in anti-German sentiment after World War I, banned the teaching of foreign languages to anyone under high-school age in any school, public or private. The court struck down the law, reminding us in words worth remembering today that “the protection of the Constitution extends to all, to those who speak other languages as well as those born with English on the tongue.” Subsequent decisions protected parental rights to educate their children and couples’ rights to get married and use contraception to plan their families.
This right to personal decision-making was summed up in Planned Parenthood v. Casey, a 1992 follow-up to Roe in which the Supreme Court affirmed the right to access legal abortion. It is the right firmly rooted in the 14th Amendment’s promise that there is “a realm of personal liberty which the government may not enter.” That realm of personal liberty protects our autonomy to decide for ourselves in matters “involving the most intimate and personal choices a person may make in a lifetime” — including decisions about love, marriage, procreation and family.
Casey’s articulation of the liberty at stake was quoted a decade later in 2003’s Lawrence v. Texas, Lambda Legal’s landmark case ending the criminalization of sodomy. Lawrence then showed up in 2013, cited in the court’s decision to strike down the Defense of Marriage Act in United States v. Windsor.
This long chain of case law means that both Obergefell and Whole Woman’s Health rest on a shared foundation of legal precedent, which is the often unseen root structure of the law that guides the decisions of judges at all levels.
What is at stake is more than LGBT rights or abortion rights. It’s our right under the Constitution to decide who we are and to make the most intimate and personal decisions in our life without government interference — and to do so with dignity.
The Senate Judiciary Committee needs to know if Trump’s Supreme Court nominee, Judge Neil Gorsuch, stands with precedent and with each of us. Given the president’s promise to take our rights away, we must ensure that full, detailed questions are asked of this nominee and that we get the answers we deserve. We will not allow ourselves to be divided. The rights of all here in this nation — not just women, not just same-sex couples — depend on our vigilance.