Overturning Roe isn’t only about red states or abortion
As the Supreme Court considers Mississippi’s request to overturn Roe v. Wade, most people realize that the constitutional right to abortion is in grave, perhaps mortal peril. Former President Donald Trump made clear he would pack the court with justices who would reject Roe, and he was able to pick three justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
It is hard to overstate what a critical crossroad the challenge to Roe presents not only for abortion but for so many of our other most cherished constitutional rights.
Many may assume that the worst that can happen is the constitutional right is eliminated and the question of abortion is left to each state to decide. So, if you live in a blue state, or can afford to travel to one, abortion would continue to be available just as before. And regardless of where you live, our other fundamental constitutional rights to make personal decisions about ourselves, our lives and our families free of unwarranted government intrusion — such as whether to marry a person of the same sex or to choose what schools our children attend — would not be affected.
If that is what you believe, please think again.
Roe not only decided that the right to liberty under the Fourteenth Amendment protects a woman’s right to an abortion before viability. It also decided that the Fourteenth Amendment’s requirement that no state shall “deprive any person of life, liberty, or property, without due process of law,” “does not include the unborn.” The court explained that if the “unborn” were considered to be “persons” within the meaning of the Fourteenth Amendment, the right to abortion would “collapse” because “the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
If you think this secondary aspect of Roe would not also be vulnerable in a post-Roe world, know that several states have already enacted laws asserting that life begins at fertilization, in the expectation that Roe will be overruled. Mississippi argues in its pending Supreme Court challenge to Roe that abortion “purposely ends a human life.” Conceding nothing, and in what appears to be a deliberately enigmatic yet foreboding statement, Mississippi maintains that overruling Roe “would leave the states with exactly as much authority to protect abortion as they have now.”
If the Republican-appointed majority on the court is now prepared to undo and overturn the right to abortion, despite 50 years of Supreme Court decisions reaffirming that right as “settled law,” then we should all be concerned about what else will fall in this house of cards. It isn’t just Democrats who are troubled. Retired Republican-appointed Justices Sandra Day O’Connor, Anthony Kennedy and David Souter pointed out that overturning Roe would cause “profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.”
The assumption that we would continue to enjoy our other fundamental constitutional rights to privacy as well as choice in our most important personal decisions free of unwarranted government intrusion, overlooks that the Constitution does not expressly mention any of these rights, including matters affecting marriage, family relationships, child rearing, education, procreation, intimate relationships, private consensual sexual conduct, contraception and medical treatment,. States have tried to regulate every one of them. And many of those efforts have failed only because, in a long line of decisions going back to the 19th century, the Supreme Court has, as in Roe, made clear that the concept of liberty guaranteed by the Fourteenth Amendment includes the same rights of privacy, individual dignity, physical autonomy, bodily integrity and the freedom to make intimate choices that define personal identity and beliefs, on which the right to abortion also rests.
The court has repeatedly found these rights are so critical and fundamental that the states must respect them.
But if the court now overturns Roe, it will base its decision on the fact that abortion, like all of these other rights, is not expressly mentioned in the Constitution. That is exactly what the three current Republican-appointed justices who joined the court before Trump was president said six years ago about the right to same-sex marriage, when they dissented from the court’s landmark 5-to-4 decision in Obergefell v. Hodges that held that individuals of the same sex have a constitutional right to marry.
They rejected the admonition of Reagan-appointed Justice Anthony Kennedy that “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning,” and that “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”
Instead, Chief Justice John Roberts wrote in his dissent that “The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with ‘[t]he whole subject of the domestic relations of husband and wife.’” Justice Samuel Alito agreed that the Constitution does not create “a right to same-sex marriage.” And Justice Clarence Thomas chastised the majority for adopting “the dangerous fiction of treating the Due Process Clause [of the Fourteenth Amendment] as a font of substantive rights.”
Can we assume that the three justices recently appointed by Trump will not take that same view if Roe falls?
When Kennedy was elevated to the Supreme Court, he was known as one of the most conservative jurists in the country. But when it came to abortion and other liberties guaranteed by the Constitution, he did not have an agenda to eliminate constitutional rights. The current Republican-appointed Justices, two of whom were his law clerks, must now decide whether to follow his path. To paraphrase Kennedy’s inspiring opinion for the majority in Obergefell, while many who disagree with the right to abortion and these other constitutional rights may have arrived at that conclusion based on sincere and honorable religious and philosophical premises, when that opposition becomes enacted into law and public policy, the necessary consequence is to put the imprimatur of the state itself on an outcome that demeans and stigmatizes those whose liberty is denied.
That would be even more true now if the Supreme Court itself, which is supposed to be the guardian of our constitutional rights, were instead to interpret the Constitution in a manner that deprives us of fundamental and long-recognized liberties, demeaning and stigmatizing so many whose liberty is thereby denied.
Michael J. Dell is a New York lawyer who has represented women who seek to protect the constitutional right to an abortion.