Tuesday, April 23, 2024

Privacy worries in a post-Roe world

Privacy worries in a post-Roe world

COMMENTARY

JUNE 27, 2022 — Editor’s note: This op-ed by Jon Taylor, professor of political science and department chair of the UTSA Department of Political Science and Geography, originally appeared in the San Antonio Express-News.

In the aftermath of the Supreme Court’s decision overturning nearly a half-century of precedence with Roe v. Wade, it might be useful to discuss why the end of Roe may portend far more than the loss of women’s reproductive rights in half the states.

Although the right to an abortion was the focus of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, much more is now at stake than Mississippi’s law banning abortions after 15 weeks — or Texas’ law banning virtually all abortions. While concern rightly centers on a woman’s reproductive choices and abortion rights, the decision now places other implicit rights at risk.

Roe is inextricably linked to the 1965 case of Griswold v. Connecticut, which affirmed a right to privacy and legalized contraceptive use under the Ninth and 14th amendments. The right to privacy established in Griswold would later be broadened by the court in Loving v. Virginia, legalizing interracial marriage; Lawrence v. Texas, which recognized the right to privacy in consensual sexual intimacy; and Obergefell v. Hodges, which established marriage equality.

Justice Samuel Alito writes in the majority opinion for Dobbs: “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.”

Alito can say what he wants, but the majority opinion suggests exactly the opposite. Alito’s claim is, in fact, disingenuous because he posits later in the opinion that constitutional rights do not exist unless they are explicitly articulated or enumerated in the Constitution.

In the Dobbs decision, the majority found that there is no “history and tradition” that grants a constitutional right to an abortion. If there is no “history or tradition” that grants this right under the precedent created by Griswold, then it puts into doubt other rights related to privacy.

This is not a slippery-slope fallacy. How? Because Alito’s opinion attacks the notion that the Constitution protects an underlying right to privacy because the word abortion is not found in the Constitution.

Based on Alito’s originalist approach, the entire framework of our understanding of the right to privacy during the past six decades is now at risk of being declared unconstitutional. If you think that this is mere theory or conjecture, think again. Justice Clarence Thomas wrote in his concurring opinion that the Supreme Court should “correct the error” of rulings that currently protect the right to contraception, same-sex relationships and marriage equality. Were Thomas to get his way, he would do away with the entire doctrine of “substantive due process” and overrule the Griswold, Lawrence and Obergefell decisions as soon as possible.

Like clockwork, conservative federal and state lawmakers have signaled their interest in a post-Roe environment to press for a federal abortion ban, a ban on companies from paying the travel costs for employees who need to cross state lines to get access to abortion care, and restricting the availability of contraceptives. Thirteen states, including Texas, have trigger laws that immediately or within the 30 days of the judgment ban or severely restrict access to abortion due to the Dobbs decision. As many as 14 other states have legislation that would partially or fully ban abortion.


EXPLORE FURTHER
Learn more about Jon Taylor from the College of Liberal and Fine Arts.

While giving a nod to judicial restraint, Alito’s opinion emphasizes that “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.”

What does this actually mean? After abortion, what are the issues of “great social significance and moral substance” that tend to get conservatives riled up? The answer: marriage equality, LGBTQIA+ rights, contraception and other culture war issues. Like abortion rights, these unenumerated rights are not explicitly referenced in the Constitution but implied through the Ninth and 14th amendments. All of these rights now face an uncertain future with the end of Roe v. Wade.

Jon Taylor



UTSA Today is produced by University Strategic Communications,
the official news source
of The University of Texas at San Antonio.

Send your feedback to news@utsa.edu.


UTSA Today is produced by University Communications and Marketing, the official news source of The University of Texas at San Antonio. Send your feedback to news@utsa.edu. Keep up-to-date on UTSA news by visiting UTSA Today. Connect with UTSA online at Facebook, Twitter, Youtube and Instagram.


Spotlight

Spotlight

dtc-utsa-sign_680.png
University of Texas at San Antonio receives ‘transformational’ $40M gift

UTSA’s Mission

The University of Texas at San Antonio is dedicated to the advancement of knowledge through research and discovery, teaching and learning, community engagement and public service. As an institution of access and excellence, UTSA embraces multicultural traditions and serves as a center for intellectual and creative resources as well as a catalyst for socioeconomic development and the commercialization of intellectual property - for Texas, the nation and the world.

UTSA’s Vision

To be a premier public research university, providing access to educational excellence and preparing citizen leaders for the global environment.

UTSA’s Core Values

We encourage an environment of dialogue and discovery, where integrity, excellence, inclusiveness, respect, collaboration and innovation are fostered.

UTSA’S Destinations

UTSA is a proud Hispanic Serving Institution (HSI) as designated by the U.S. Department of Education .

Our Commitment to Inclusivity

The University of Texas at San Antonio, a Hispanic Serving Institution situated in a global city that has been a crossroads of peoples and cultures for centuries, values diversity and inclusion in all aspects of university life. As an institution expressly founded to advance the education of Mexican Americans and other underserved communities, our university is committed to promoting access for all. UTSA, a premier public research university, fosters academic excellence through a community of dialogue, discovery and innovation that embraces the uniqueness of each voice.