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Why Roe Matters (It’s Not Just Abortion Rights)

February 5, 2019

The “right to privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” So wrote Justice Harry Blackmun in 1973 in his seminal opinion in Roe v. Wade, 410 U.S. 113 (1973). By that opinion, 7 men (with 2 men opposing) determined that the federal Constitution prevented states from prohibiting first trimester abortions completely; allowed abortions performed between the end of the first trimester and viability to be regulated only where “reasonably relate[d] to the ‘preservation and protection of maternal health;’” and allowed restrictions after viability, provided that exceptions were made to bans to protect the life and health of the mother. And so the law has remained, officially at least, though with a degree of reinterpretation in a series of cases.

Banning abortion has been the rallying cry of the religious right for decades. Republican presidential candidates back to Reagan have bent the knee and promised to appoint Supreme Court justices to overturn Roe. And the current administration, largely due to Senator McConnell’s unconscionable and unprecedented refusal to even consider President Obama’s nomination of Judge Garland, has had the chance to reshape the Court in such a fashion that it appears likely that a full scale repeal of Roe is possible.

What would such a reversal mean? Much would depend on the precise rationale used in the case. But, while many tell us that all overturning Roe would do is allow states to make their own decisions, it’s clear that many states would rush to ban all abortion. Indeed, 4 states already have trigger laws on their statute books banning abortion if the decision is reversed. Other states, such as New York, have recently taken steps to protect reproductive rights in case of a Supreme Court reversal. But even in the states that may wish to keep abortion legal, a Supreme Court decision would still have a major impact. In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court upheld the federal Partial-Birth Abortion Ban Act. The federal government was thereby allowed to regulate abortion, substituting its own judgment for that of medical professionals, and prohibiting an entire medical procedure (Intact Dilation and Extraction) regardless of whether it included an exemption for the health and safety of the woman. There’s little doubt that federal laws after Roe was overturned would be extended to make abortion difficult or impossible even in states that wished to allow it.

So if Roe goes, abortion goes away in much, if not all of the country. Well, abortion won’t stop. It never did. Safe, sanitary abortion will always be available for those who can afford to travel and afford to pay for it. For the marginalized rest, disproportionately women of color, abortion will return to the back alleys, and life-threatening complications will return to our ERs.

But what else is on the line if Roe is overturned? The next victim of such a judicial decision would likely be contraception. If the notion of privacy that is central to Roe is rejected by the highest court, then it is impossible to see how Griswold v. Connecticut, 381 U.S. 479 (1965) survives. Based on the same notion of ‘privacy’ that the Court used in Roe, Griswold prevented states from banning contraceptives for married couples (later extended to all adults). What state would ban contraception in 2019? Unfortunately, the banning of many forms of contraception has been a key demand of Evangelicals; they erroneously and unscientifically categorize IUDs, emergency contraception, and even the pill as being abortifacients and so worthy of banning. A U.S. without Roe is a U.S. where states will seek to roll back what types of contraceptives people can use, and which people can use them.

But privacy doesn’t stop with preventing or terminating pregnancies in the law. If the notion of a protected right to privacy, the idea of an area of personal life into which the government, without the strongest of interests, may not intrude, is cast aside, then other decisions stand open to challenge. Most immediately, these include decisions regarding LGBTQ rights. When Justice Kennedy ruled that animus to homosexuals could not justify discriminatory laws (Romer v. Evans, 517 U.S. 620 (1996)); that states could not criminalize same-sex physical intimacy (Lawrence v. Texas, 529 U.S. 558 (2003)); that the government could not treat same sex marriages as lesser (U.S. v. Windsor, 570 U.S. __ (2013)); and that gays and lesbians had the same right to marry the partner of their choice as straight people (Obergefell v. Hodges, 576 U.S. __ (2015)), he did so based on a notion of dignity and privacy. The Supreme Court ruled that who one loves and marries is such a personal, private decision for consenting adults that the government has no place in interfering.

But without Roe, and without its recognition of privacy, such decisions have far weaker grounding. Without clear recognition that the Constitution protects privacy rights, whole swaths of our personal lives become open to government control and regulation. Whether this right is to be found in the Fourteenth Amendment’s guarantee of due process and fundamental rights, or in the Ninth Amendment’s clear statement that the rights listed in the earlier Amendments are not exclusive (it’s the Ninth, and courts that say otherwise are wrong), it is a cornerstone of our liberty, now and in the future. If we are, for example, to establish a broader right to medical aid in dying, we will do so through the notion of a right to privacy.

If Roe goes, privacy as a protected right goes. The first victims will, of course, be those groups who raise the ire of the religious right. But it won’t stop there. The notion that there is no area of our life so private that it isn’t the government’s business at the whim of elected politicians scares me, and it should scare you. Even if you aren’t planning to have an abortion.