Amendments to the US Constitution are like movie stars: their popularity comes and goes. For some, like the Second, which guarantees “the right to keep and bear arms”, fashions do not go out. Others have their moments. This has been, without a doubt, the week of the Fourteenth, invoked in two historic decisions of the Supreme Court: the one that on Thursday agreed with two citizens of the State of New York who wanted to carry their pistols in public without prior justification and the one that on friday repealed Roe contra Wade, which in 1973 gave constitutional status to access to abortion “free of State interference”. The ruling undoes precisely that, by returning to the States the power to legislate on the subject. It is estimated that 26 out of 50 are willing to break a half-century precedent. Some have already done it; others are expected in the coming days or weeks.

On that amendment, from which, among other things, the protection of the right to privacy is derived and which was ratified in 1868 with the Civil War still recent, the argumentation of Roe. That reasoning was “troubled from the beginning,” writes Judge Samuel Alito, drafter of the majority opinion of six against three, in one of the sentences of the 213 pages of Friday’s sentence that has made the most fortune. In the protection of privacy, failures were also justified Obergefell contra Hodges (2015), which legalized same-sex marriage, Lawrence contra Texas (2003), which ended the ban on same-sex relationships (2003) and Griswold contra Connecticut (1965), which allowed married couples to use contraception.

The reference to these three processes is not a whim: they are all cases cited by Judge Clarence Thomas, who voted with the majority and is one of the most conservative members of the most conservative court that the United States has had since the 1930s. In his concurring opinion, he expressly called for review of those decisions: “We have a duty to correct the error established in those precedents.”

Those words provoked a reaction from President Joe Biden (because they threaten “other rights we take for granted”) and Jim Obergefell, the plaintiff in the case that legalized same-sex marriage (“Thomas just painted a bull’s-eye on privacy” said to Cincinnatti Enquirer) and they set off the alarms on Friday within the LGTBI community and among the three liberal magistrates who opposed the ruling. In his dissenting opinion, it can be read that “no one should be sure that this majority has finished its work”, in reference to the steps, certainly unpredictable, that they may take later.

Basically, they consider, these three sentences are directly related to each other. “The right to terminate a pregnancy,” write Sonia Sotomayor, Elena Kagan, and Stephen Breyer, “stemmed directly from the right to purchase and use contraception. In turn, those rights have led, more recently, to the recognition of same-sex intimacy and marriage.” Either the majority opinion is written from hypocrisy, the justices continue, or additional constitutional rights “are under threat.” “One of two”, they add.

The debate within the court is served, as evidenced by the fact that the substantial difference between the draft of the sentence that was leaked at the beginning of May and the final text known this Friday is in a justification by Alito in which he underlines that the abortion ruling does not jeopardize those other precedents. (And in law, it is well known that an unsolicited excuse often hides an open accusation.)

“I absolutely believe that same-sex marriage, access to contraceptives and the right to consensual sexual relations are threatened with this Supreme Court,” Paul Collins, a professor of law at the University of Massachusetts and author of three books on the progressive politicization of the judicial body. “Although the majority indicated that the decision to Dobbs [contra Women’s Health Organization, que es el nombre completo de la sentencia del viernes] it only pertained to abortion, it can easily be interpreted to nullify almost any right that is not specifically outlined in the constitution and deeply rooted in the nation’s history and traditions. And I’m afraid none of those three rights are.”

Toni Codinas, a 41-year-old director of corporate strategy based in Washington, is also wary. “I see real fear in the LGBTI community. It gives the impression that a shower of judicial blows is coming”. Codinas married “as soon as possible” with her long-term partner, Donald Gatlin. “It is worrying to think of a future in which our rights may be undermined in States that decide not to recognize same-sex marriage,” she explains. “I only hope that these real threats mobilize the Democratic vote in the legislative elections next November. And that if a sufficient majority is obtained, that action be taken to codify those rights. [El presidente Barack] Obama had it and didn’t, probably because he thought abortion was out of the question. He was wrong. The conservative wave that the Supreme Court has taken as part of a calculated strategy has shown it.”

The 1973 decision, which brought forward Roe contra Wade with a 7-2 majority, it was based on the intimacy that attends a woman who decides to terminate a pregnancy. And that made it controversial from the very day Judge Harry Blackmun signed the ruling, whom he had appointed a Republican president (in his case, Richard Nixon), as well as four others who voted in favor. This is how the liberal magistrate Ruth Bader Ginsburg considered it, the closest thing to a pop star of the judiciary that this country has produced, in a text written when she was not yet a member of the Supreme Court. Her death in September 2020 allowed Donald Trump to appoint Amy Coney Barrett, his third judge to the high court, in a rush, which unbalanced her composition towards a conservative supermajority of six against three.

“If they had clung to the equality clause of the Fourteenth Amendment, instead of the privacy clause,” Collins argues, “the idea would have prevailed that denying a woman reproductive freedom is a form of gender discrimination. And I think it would have been more difficult for the majority of Supreme to knock down Roe”.

For that it is already too late. “We did not want to see it while it was happening, but the conservative movement in this country has strategically surpassed us,” lamented the audiovisual producer Andrea Fuller, one of the thousands of protesters who gathered in front of the Supreme Court headquarters on Friday night. Washington to protest the ruling. Not by chance, in the protests that took place that day in 568 cities across the country, there were many posters and symbols typical of the movement in defense of LGTBI rights, in anticipation of what might come. And this Sunday in New York, they invited the representatives of Planned Parenthood, an organization dedicated to reproductive health with clinics in 40 cities, to lead, with the outstanding presence of its CEO, Alexis McGill Johnson, the Pride march, which returned to the streets of Manhattan for the first time since 2019, after the two years of absence forced by the pandemic.