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Overturning Roe v. Wade could erode other rights such as same-sex marriage

A MARTINEZ, HOST:

After the leaked draft of a Supreme Court decision to overturn Roe hit the internet this week, Democrats quickly found themselves talking about how an array of rights besides abortion are under threat, such as gay marriage and birth control. Here's Joe Biden speaking this week.

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PRESIDENT JOE BIDEN: What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that's existed in American history.

MARTINEZ: NPR political correspondent Danielle Kurtzleben is here to talk us through this about what it means both legally and politically. Danielle, let's start with the legal side of things. Are gay marriage and birth control connected to abortion legally?

DANIELLE KURTZLEBEN, BYLINE: They are connected. And the idea in Roe is that abortion is an unenumerated right - that is, it's one that the Constitution protects, even if the Constitution doesn't explicitly say so. And the idea is that it's - abortion is protected by the 14th Amendment, which the court has used to protect people's right to privacy. So Alito argues that when that 14th Amendment was passed in 1868, American law didn't recognize abortion as a fundamental right. Therefore, he says, the right to an abortion isn't protected. Now, that logic could carry over to a lot of other rights, says Mary Ziegler, who is a visiting professor at Harvard Law School.

MARY ZIEGLER: At the time the relevant part of the Constitution was written, same-sex couples could not marry. Interracial couples certainly couldn't marry. Birth control was being criminalized. And so the logic is, if that's how we determine where our constitutional rights begin and end, there's no reason that would stop with abortion.

KURTZLEBEN: Now, Alito does write in the opinion that Roe is separate from those other rights because it's specifically about fetal life. But that doesn't mean the court can't change its mind in the future.

MARTINEZ: Yeah, this has quickly become a central message for Democrats. What's the political logic behind that?

KURTZLEBEN: You know, I've asked a lot of supporters of abortion rights how they feel about that message because those activists have criticized people like Biden heavily for seeming reluctant to talk about abortion or even use the word. So grouping abortion in with other rights might come off as reluctance or changing the subject, but Renee Bracey Sherman, who is the founder of abortion rights advocacy group We Testify, she told me that this is about making voters see abortion as a fundamental part of a landscape of rights that are all interconnected and that it's about just educating voters. Here's what she said.

RENEE BRACEY SHERMAN: A lot of people think, I might never need an abortion. And a lot of people think about all issues like, oh, I'm not trans. I'm not Black. Why does police brutality matter to me? But I think what people don't realize is how much something like Roe v. Wade is the bedrock of so many other things legally.

MARTINEZ: All right. So, well, what do we know, then, about how that argument will play with voters in November? Because if you look at the national landscape, Democrats were not expected to do well in the midterms. Could this help them?

KURTZLEBEN: Well, let's start with some basic numbers. A majority of Americans believe that abortion should be legal in some or all circumstances, but a plurality are in that same category - they think there should be some restrictions. And that's important because pollster Tresa Undem told me that along those lines, a lot of Americans just don't feel very emotional about the topic of abortion. It just doesn't come up much for them. But that could change if Roe is overturned.

TRESA UNDEM: That is going to break through to people. They don't have to read a political article. They're going to hear about it. They're going to be upset about it. They're going to be surprised by it - maybe not shocked, but surprised.

KURTZLEBEN: So if people who don't normally think about abortion much hear that this right could be taken away, they could be angry. That said, we don't know how this is going to play out. We're in uncharted territory. And by the way, there are more immediate consequences. If Roe is overturned, greater abortion restrictions will start before November.

MARTINEZ: NPR's Danielle Kurtzleben. Danielle, thanks.

KURTZLEBEN: Thank you. Transcript provided by NPR, Copyright NPR.