The Hidden Costs of Overturning Roe v. Wade
The United States Supreme Court on Wednesday rejected an emergency petition filed by Planned Parenthood of Greater Texas, allowing into effect a law in that state banning abortions as early as six weeks into pregnancy. Speaking on national television Wednesday morning, Alexis Mcgill Johnson, President and CEO of the national Planned Parenthood organization, woefully declared that the Texas law amounts to a “de facto overturning of Roe before the Supreme Court has time to hear the Mississippi case.” The Mississippi case to which Johnson referenced is Dobbs v. Jackson Women’s Health Organization, slated for oral arguments in front of the Court later this year. The Dobbs case is an anti-abortion test case that is a direct legal challenge to Roe v. Wade, the seminal 1973 case that solidified, among other things, a constitutional right to privacy, including access to abortion services up to the point of viability. The question Dobbs presents before the Court is a simple yet potentially devastating one for abortion rights activists: whether all pre-viability prohibitions on elective abortions are unconstitutional.
While most of the national, media and political focus on Roe is understandably centered on access to abortion services, given the political fraughtness of the issue, what few may realize is that there are far-reaching consequences of overturning Roe v. Wade beyond the right and access to abortion. The constitutional doctrine under which access to abortion lives, the right to privacy, is one of the least legally stable doctrines in the constitution, as it is not solidly grounded in some strong constitutional principle such as due process, equal protection, or the right to free speech.
Rather, the right to privacy is found in what Justice William Douglas described as the “penumbra” of the “First, Third, Fourth, Fifth, and Ninth” amendments. In other words, the right to privacy is a hodge-podge of sorts, standing not on its own constitutional merits, but rather derivative of rights found in various amendments to the Bill of Rights. While some may believe this amounts to a mere legal technicality, the reality is that the right to privacy framework has consistently and successfully been challenged as judicial activism and not a “real” right guaranteed by the constitution.
Thus, a successful challenge to Roe may very well amount to a successful challenge to the right to privacy, putting into peril all the other legal victories that have been secured under that framework. Most notably, although certainly not most importantly, the right to same-sex marriage is found in the right to privacy, as is the right to contraception and the right to “intimacy” which struck down laws banning sodomy. While often not talked about in this way, challenging Roe could have far-reaching consequences beyond access to abortion, consequences that would primarily and negatively impact a group that has relied on the right to privacy for nearly all of our constitutional rights and protections; sexual minorities.
While cases such as Dobbs and the Texas anti-abortion law may not explicitly be challenges to the right to privacy, the implicit logic of both is undoubtedly an attack on all people whose protections stem from the same legal thinking and reasoning of Roe. This is one of the reasons, among many, that proponents of reproductive justice seek to expand the conversation about Roe beyond access to abortion; what lies at the heart of abortion rights is a right to livelihood and the right to live one’s life that is in the best interest and accordance of their family unit, however that may look. Abortion rights advocates would be smart to follow the reproductive justice framework, not only to move the conversation away from the politically contentious issue of abortion, the mere mention of which usually kills any chance of a genuine debate, but to recognize the scores of people that would also be affected should Roe meet its peril at the Supreme Court.
