Will Demise of “Roe” Be a Death Knell for Contraception, Marriage Rights?

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Human Rights and Global Wrongs

In his explosive draft opinion in Dobbs v. Jackson Women’s Health Organization, which was leaked to Politico, Samuel Alito overrules Roe v. Wade and Planned Parenthood v. Casey. His draft holds that abortion is no longer a constitutional right and leaves the fate of those who seek abortions to the vagaries of state laws.

“We therefore hold that the Constitution does not confer a right to abortion,” Alito writes. “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

If four other members of the Supreme Court adopt Alito’s draft, many other privacy rights we hold dear will be in jeopardy. They include the rights to contraception and same-sex marriage, among others.

In December, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett voted with Alito after oral argument and they continue to hold that position, according to Politico. That’s a five-member majority if they sign on to Alito’s draft opinion by the end of June.

Nearly a half century ago, the Supreme Court held in Roe that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.” The court relied on longstanding precedents holding that “the Fourteenth Amendment’s concept of personal liberty” prohibits governmental interference with personal decisions about marriage, contraception, procreation, family relationships, child-rearing and education.

Twenty years later, in Casey, the court reaffirmed the central holding of Roe — that a pregnant woman has the right to an abortion before the fetus becomes viable (at about 23 weeks of pregnancy). Casey highlighted the “settled” principle that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood … as well as bodily integrity.”

The court cited Casey with approval in Washington v. Glucksberg, in which it listed the right to “abortion” with the rights “to marry,” “to use contraception,” “to have children” and “to bodily integrity,” which are recognized in a “long line of cases” that interpret the Due Process Clause. It requires due process before the government can deprive someone of life, liberty or property.

In Lawrence v. Texas, the court relied on Casey to hold that states cannot criminalize “homosexual conduct.” The Lawrence court said that the “right to liberty under the Due Process Clause” guarantees “a realm of personal liberty that the government may not enter.”

The court used those same precedents to hold in Obergefell v. Hodges that the Constitution protects same-sex marriage: “Like choices concerning contraception, family relationships, procreation, and childrearing, decisions concerning marriage are among the most intimate that an individual can make,” and are therefore “inherent in the concept of individual autonomy” protected by the Due Process Clause.

In his draft opinion in Dobbs, Alito writes, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Nevertheless, Alito eviscerates the fundamental underpinnings of the rights to contraception, sexual freedom and same-sex marriage. He holds that abortion, which is not specifically mentioned in the Constitution, is not “deeply rooted in this nation’s history and tradition” and is not “implicit in the concept of ordered liberty.”

“On the contrary,” Alito writes, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973 [when Roe was decided].”

Alito specifically criticizes Lawrence and Obergefell, writing that they are not “deeply rooted in history.” But as Erwin Chemerinsky, dean of Berkeley Law School, noted in the Los Angeles Times, “Unless the court is going to repudiate all of the other privacy rights, it is impossible to deny that laws prohibiting abortion also intrude on a woman’s liberty.”

In his draft opinion, Alito “disavows the entire line of jurisprudence upon which Roe rests: the existence of ‘unenumerated rights’ that safeguard individual autonomy from state invasion,” Mark Joseph Stern wrote at Slate. “Alito asserts that any such right must be ‘deeply rooted’ in the nation’s history and tradition, and access to abortion has no such roots.”

If the court overrules Roe, around half the states will outlaw or severely limit abortion. Thirteen states with “trigger laws” would immediately ban abortion. Five states that have pre-Roe abortion bans could once again enforce them. And 14 states would ban abortions before fetal viability. Prohibition of and restrictions on abortion would disproportionately affect poor women and people of color.

People suffering early miscarriages or ectopic pregnancies could be adversely affected if Roe is overturned. Fertility procedures such as in-vitro fertilization (IVF), egg extractions and stem cell procedures could be outlawed.

Other “unenumerated” rights not specifically listed in the Constitution would be jeopardized, including the right to travel, the right to vote and the right to interracial marriage.

The ramifications of a Supreme Court decision overruling Roe are unfathomable. Not only will people be denied the right to have an abortion, those who need other medical procedures would be at risk. And privacy rights we now take for granted could evaporate.

As the United States moves, terrifyingly, toward a Christian theocracy that has methodically and finally seized control of the Supreme Court, we must remain vigilant and take action. That includes speaking out, contacting Congress members and the White House, writing op-eds and letters to the editor, and demonstrating like thousands of people are doing across the country.