Overturning Roe v Wade - The Impact Beyond Abortion
The potential overturning of Roe v. Wade has far more implications beyond the obvious, direct, result. First Roe v. Wade is considered a landmark ruling because it solidifies the idea that American citizens have what is called a “Right To Privacy”. This is hugely important because many of the laws that we follow in this country are not legislated through Congress, but through what is called precedent. That means that a lawyer has to look through previous cases where circumstances were similar and find rulings where the judge ruled in a way that aligned with any cases they are presenting and to use those previous rulings to justify the validity of their claim. This allows for a lot of room for interpretation and as a result many of the laws we follow as a society are not exactly concrete. For instance, going back to the Right To Privacy, this right is not codified in the Constitution, it is implied through precedent. With Roe v Wade finding that making abortions illegal was unconstitutional due to it’s violating a person’s Right To Privacy the Supreme Court is implying that this right is there and only decisions like this are what allow us to hold this right. By reversing Roe v Wade the legal implication now goes on to lessen the legality of that claim. Every other ruling that uses the precedent of the Right To Privacy is now potentially illegitimate. And what does the Right To Privacy cover? Anything you wish to do in your private life that the government should have no say in. These decisions go back to the early 1900’s but I think the most relevant few for this discussion starts with Skinner v. Oklahoma in 1942 where it was decided that the state could not sterilize criminals against their will based on the idea that all people have a fundamental right to make their choices about marriage and procreation. Another relevant case that uses this precedent is the 1965 ruling of Griswold v. Connecticut which found that, due to previous rulings, a person’s right to make decisions about their family and procreation created a legitimate sphere of privacy that the government does not have limitless control over and therefore denied the state the ability to create laws banning the sale of contraceptives to married people. Then in 1967 in the case Loving v. Virginia the court found Virginia’s law banning interracial marriage to be counter to this implied Right To Privacy as the state was attempting to cross into this same sphere of personal choice where they have no right to make decisions without good cause and establishing marriage as a “fundamental civil right”. In 1972 another case known as Eisenstadt v. Baird found that the education about, and use of, contraceptives was not a right limited to marriages as this Right To Privacy and, therefore, the right to make this decision rested with the person, not the act of marriage. Also in 1967 you have the case in question Roe v. Wade. This case decided that pursuant to the precedent established by the previously listed cases that the right to privacy established that a woman’s right to an abortion fell under the guise of a woman’s inherent right to make decisions regarding family, children and procreation. After Roe v. Wade we see another case that is relevant in Lawrence v. Texas in 2003. This decision used this same implied right to privacy to invalidate Texas’ laws calling the act of sodomy a punishable offense. The court ruled that trying to legislate what consenting adults do and don’t do in the bedroom violated their right to privacy and their autonomy to define one’s own relationships and sexual decisions based on the existing implied right to privacy precedent set by all of these previous cases. And the last case I will bring up (there are more in between but these are the ones I feel are most relevant right now) is Obergefell v. Hodges from 2015. This ruling is what determines that same sex marriage must be recognized by all states and the Federal Government as valid marriage. This ruling specifically mentioned Griswold v. Connecticut, Loving v. Virginia, Eisenstadt v. Baird and Lawrence V. Texas in its decision arguing that this right to marry fell directly under the Right To Privacy and that excluding same sex couples based upon their personal relationship and intimate decisions was unconstitutional as the government did not have the right to infringe upon this right. So what does all of this mean? Essentially if Roe v. Wade is found to be unconstitutional then it allows for every case that it was based on, and every case that was based on it, to be potentially struck down as well because it establishes new precedent. This means that this decision can be used to overturn Skinner v. Oklahoma and make it possible for the states to create laws that allow them to sterilize criminals (or anyone) so that they can’t procreate. It can be used to justify overturning Griswold v. Connecticut and Eisenstadt v. Baird making it legal for states to ban the use of contraceptives or even making it a punishable offense to use them or educate about them. It could be used to overturn Loving v. Virginia and allow states to invalidate all interracial marriage as well as taking away the concept that marriage is a fundamental civil right. This precedent could also be used to overturn Lawrence v. Texas and Obergefell v. Hodges making it perfectly legal for states to pass laws making any same sex intimacy a punishable crime and allowing them to take away the right for same sex couples to marry and have that marriage be considered valid. These landmark decisions are all in jeopardy if Roe v. Wade falls and short of expanding and packing the court or individually legislating each of these decisions into federal law or adding the right to privacy as an official amendment to the constitution there isn’t anything we can do to stop it. I know it’s really easy to look at all this and make the assumption that I am fear mongering or to tell yourself “that’ll never happen” but it is already begun. Just a few days ago Idaho State Affairs Committee Chair Brent Crane, who is a Republican, announced that they would have hearings and consider legislation to ban the morning after pill, a form of contraception used before conception like Plan B, throughout the state and when asked about IUD’s he didn’t hadn’t yet made a decision as to whether they would be included. (Idaho Statesman 5/7/2022) There has also been statements made by pro-life politicians that insinuate their preference to do away with contraceptives like Arizona state senate candidate Blake Masters (R) who is running on platform of pro life and has vowed on his campaign website (since amended to remove Griswold due to backlash) to oppose any judge nominated who doesn’t agree that Griswold, Casey, and Roe were all wrongly decided. Also Senator Marsha Blackburn (R Tennessee), recently publicly stated that rulings like Griswold v. Connecticut were unsound. And now there are more coming out every few days such as Mississippi Governor Tate Reeves (R) who has stated that if Roe is overturned that his state will consider banning certain forms of birth control. The fact that these politicians aren't coming out in higher numbers yet is because they must first wait for Roe to be officially overturned and then they can enact their waiting legislation on abortion before turning their sights on contraception and attempting to draft legislation to challenge the court decisions protecting contraception. If they lose their focus on abortion before Roe is invalidated they will lose momentum and there is a chance that the court can be persuaded to change their decision before releasing it officially, which they are expected to do by the end of June. But to give you an idea of what their collective focus looks like in just 2022 alone, as of May 5th, state legislators have introduced 546 restrictions targeting abortion in 42 states and 86 bans against abortions in 31 states. Of those introduced 37 restrictions have been enacted in 10 states and 8 bans have been enacted in 6 states. All in under 5 months. I have zero faith that these legislators will be any less vigilant in their pursuit of the other privileges we enjoy under the protection or our “Right To Privacy” as they have no problem using their religious beliefs to justify their motives and they are very good at moving in a concerted effort and using distraction while not being distracted from their goals.
Idaho Statesman article mentioning potential hearings regarding contraceptives
Senator Marsha Blackburn statement
Statement by Governor Tate Reeves
Statement put forth in Master’s campaign about Griswold v. Connecticut being wrongly decided
Data collected in regard to legislation on abortion in