What ‘Roe’ Could Take Down With It


The consensus of Supreme Court watchers after Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization is that the demise of Roe v. Wade, or at least its dilution to a point that virtually any government-imposed “burden” on abortion would be constitutionally acceptable, is coming. After all, this Court allowed a Texas law effectively banning most abortions after six weeks to stand pending litigation, rejecting multiple pleas for a temporary stay—as clear a signal as any that at least five justices on the current Court have no problem with women’s constitutional rights (as currently recognized) being violated in the interim.

Many of the dangers of overruling Roe have been long discussed. If women lose the right to an abortion, pregnancy-related deaths are estimated to rise substantially and suddenly. (Currently, 26 states have so-called trigger laws on the books that would outlaw most abortions the moment the Court reverses Roe.) The impact of Roe’s fall would hit low-income women especially hard, as they’re five times as likely as affluent women to experience unplanned childbearing and twice as likely to face sexual violence.

Those are the dangers of restricting access to abortion. The thing is, the dangers of dispensing with Roe go far beyond abortion, because the legal logic that threatens this particular right could quite easily extend to others, inviting states to try out new laws that regulate choices about whom to marry, whom to be intimate with, what contraception to use, and how to rear one’s own children.

The contention that Roe is uniquely built on a foundation of sand ignores the inconvenient fact that lots of other rights are not expressly articulated in the Constitution. The question that a reversal of Roe accordingly poses is whether the “textualists” and “originalists” on this conservative-heavy Court would allow those implied rights to go by the wayside as well.

Most people tether Roe’s legal foundations to the right to privacy identified in Griswold v. Connecticut, a 1965 decision striking down state laws rendering illegal the use of contraceptives by married couples. The Court ultimately identified a constitutional “right to privacy” within protective “penumbras” that emanate from the Bill of Rights—in particular the First, Fourth, Fifth, Ninth, and Fourteenth Amendments—and reasoned that these penumbras operate to shield “an intimate relation of husband and wife and their physician’s role in one aspect of that relation” from government intrusion. Picking up on Griswold in 1973, the Court in Roe acknowledged that “the Constitution does not explicitly mention any right to privacy,” but seized on the earlier case’s recognition of “a guarantee of certain areas or zones of privacy” to strike down a Texas law criminalizing abortion.

Bemoaning the analytical shortcomings of Roe, the late Justice Ruth Bader Ginsburg, a champion of gender equality under the Constitution, noted that critics were “charging the Court with reading its own values into the due process clause.” (In her view, “the Court presented an incomplete justification for its decision” and should have added “a distinct sex discrimination theme” to its balancing of fetal versus maternal interests.) Those charges have endured, culminating in the Dobbs case, which tees up a reversal of Roe, despite the fact that a majority of Americans across the political spectrum favor some measure of safe and legal abortion access.

But Griswold was not the Court’s first word on the scope of “liberty” under the Fourteenth Amendment’s due-process clause, which protects individuals from arbitrary governmental deprivations of “life, liberty or property” without articulating with any precision what the word liberty actually means. In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating. A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.

Consider the 1923 case Meyer v. Nebraska, in which the Court struck down a law criminalizing the teaching of German in private schools. “The obvious purpose of this statute,” the Court wrote, “was that the English language should be and become the mother tongue of all children reared in this state.” Although its enactment “comes reasonably within the police power of the state,” the Court found that the law ”unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment”—the precise grounding of the now-precarious individual right to decide whether to carry a fetus to term. Two years later, in Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, the Court struck down an Oregon criminal law forcing parents to send their children to public school. “The manifest purpose” of the law, the Court noted, “is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade.” Citing Meyer, the Court ruled, “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.”

The Court has construed liberty to safeguard numerous other personal safe spaces: the right to marry regardless of race (1967’s Loving v. Virginia) and sex (2015’s Obergefell v. Hodges). The right to use contraception (Griswold). The right to be free from compulsory sterilization by the state (1942’s Skinner v. Oklahoma). The right to be free of government-mandated surgery involving “a virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin” (1985’s Winston v. Lee). And the right to engage in intimate sexual conduct with a partner of one’s choice without fear of criminal prosecution (2003’s Lawrence v. Texas).

In Dobbs, the state of Mississippi’s answer to this line of cases is to suggest that the life of an unborn fetus is especially sacred under the Constitution: “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life,” it claims. But saying so does not mean that critics of other privacy-based rights could not find their own reasons why those rights, too, must be balanced against some other competing interest.

Thus, to say that Roe is a one-off constitutional blunder, built on a flimsy foundation, while other rights are grounded in concrete, is a myth—and a dangerous one. Nothing in the Constitution says anything to specifically protect couples’ ability to choose to have sex, use contraception, get married, decide how to educate their children, refuse bodily inspection or medical treatments, and, yes, terminate a pregnancy. From a legal perspective, if Roe falls, it’s hard to see what else will still stand.



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