Privacy worries in a post-Roe world

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.

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