If Roe v. Wade is overturned, as the leaked draft of the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization portends, the impact will be felt most immediately and directly by women and even more keenly by many women of color. But, Roe’s demise could also challenge other ordinary aspects of our lives: sexual privacy, buying contraceptives, or even living with our grandparents.
Starting with its potential direct impact, the draft opinion makes alarming claims about women and their interests, and doesn’t even address transgender people. It dismisses the notion that there is an equal protection right to abortion on the grounds that “abortion is not a sex-based classification.”
The draft also pleads ignorance about the impact of eliminating legal access to abortion and describes a world of apparent equality, where women have “electoral” and “political power.” Yet it ignores the great inequalities that arise when women lose the ability to control their reproductive lives, which can interfere with education, career goals, and the avoidance of public assistance.
Moreover, almost half of abortions are performed on women whose income is below the poverty line. Roe’s demise also raises racial justice issues: abortion rates are more than three times higher for Black women than White women. With the obstacles to health care that many women of color face, abortion bans only exacerbate societal inequalities.
Finally, overruling Roe might limit access to certain types of contraception—like IUDs and emergency contraception such as Plan B—if states ban them on the ground that they are a form of abortion, which some religious groups believe they are.
The court has already recognized the right of employers with religious objections not to fulfill the Affordable Care Act’s requirement to cover certain forms of contraception if they view them as abortion.
Assisted reproductive technology is also at risk. Hundreds of thousands of in vitro fertilization (IVF) cycles each year help people create families. Because IVF also creates excess embryos that might be destroyed or frozen after fertilization, states might ban this process.
Broad Consequences of Rejecting Roe’s Legal Analysis
The draft opinion’s rejection of the legal analysis underlying Roe has potentially even broader consequences. The cases underpinning Roe v. Wade (and Planned Parenthood v. Casey) can be traced back to opinions in the early 1920s that recognized the right to intimate associations and life determinations without undue state interference.
In the 1965 decision Griswold v. Connecticut, the Supreme Court drew upon those cases to find “zones of privacy” within the “penumbras” of the First, Third, Fourth, and Fifth Amendments, noting that the Due Process clause of the 14th Amendment was implicated.
While Griswold recognized a constitutional right to contraception as part of the intimate association of marriage, in 1972, the court extended this privacy right to single individuals in Eisenstadt v. Baird. One year later, the court confronted the question of abortion in Roe. It, too, relied on the line of cases that found fundamental rights in the Due Process Clause, including Loving v. Virginia, which protected the right of interracial marriage.
The court relied on Roe in 1977 when it struck down a New York law that permitted only licensed pharmacists to distribute nonprescription contraceptives (such as condoms) and that prohibited the advertisement or display contraceptives. Roe has also been used to support the right of a grandmother to live with her two grandsons, and the father of one of them, in Moore v. City of East Cleveland.
In 2003, Roe’s analysis informed the Supreme Court’s decision in Lawrence v. Texas that the Constitution protects the right of same-sex couples to engage in sodomy. And finally, in 2015, it applied substantive due process to recognize the fundamental right of same-sex couples to marry in Obergefell v. Hodges.
Overturning Precedent to Eliminate a Right
The draft opinion devotes considerable energy to critiquing the constitutional underpinnings of Roe. As a result, there is little comfort in its disingenuous promise to leave such important decisions to the states and its claim that it should not “be understood to cast doubt on precedents that do not concern abortion;” any of those precedents is subject to undermining as well. In the words of the late Justice Antonis Scalia, “Do not believe it.”
Justice Samuel Alito’s insistence in the draft opinion that liberty interests must be “deeply rooted in the Nation’s history and traditions” threatens the right to contraception, same-sex marriage, and interracial marriage, given that our country has prohibited them all, just as it did with abortion. Indeed, the Supreme Court upheld Alabama’s anti-miscegenation law in 1883. Returning such issues to the states means that the Constitution might no longer provide protection for them.
Moreover, this decision would probably mark the first time the court overturned precedent to eliminate a liberty right that is central to the regulation of one’s intimate life and family relationships. In short, most rights recognized under the Due Process Clause are at risk.
The concern about the vulnerability of these rights is not hypothetical. Some politicians openly disapprove of Griswold, and the governor of Mississippi has not ruled out bans on some forms of contraception.
Similarly, several of the conservative justices have expressed strong opposition to the Obergefell ruling. Justices Clarence Thomas and Alito made no secret of their disdain for the reasoning and holding of Obergefell in Davis v. Ermold.
Even the holding in Loving—that under “our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”—is vulnerable.
Sen. Mike Braun (R-Ind.) recently suggested in an interview that if abortion should be decided by the states, so too should the question of interracial marriage. While he ultimately retracted that view, his argument that “you can’t have it both ways” seems apt in this context.
It remains to be seen whether Alito can have it both ways in claiming that his draft opinion only concerns abortion and has no implications for other rights or women’s status in contemporary society.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Sonia Suter is a professor of law at the George Washington University Law School and founding director of the Health Law Initiative.
Naomi Cahn is a professor of law at the University of Virginia School of Law and co-director of UVA Law’s Family Law Center.