Wednesday, December 29, 2021
My thoughts on "The End of Roe and More," JURIST.
The Supreme Court will overturn the law recognizing a woman’s fundamental right to choose an abortion. The only question is whether it will go even further and jeopardize women’s equality, reproductive rights, and family privacy rights for all.
Pending in the Court is Dobbs v. Jackson Women’s Health Organization and the question of the constitutionality of Mississippi’s ban on abortion after 15 weeks. The Court’s most recent abortion decision, June Medical Services v. Russo (2020), regarding physician admitting privileges for providers, held on to abortion rights by a thread, tied together by Justice Ruth Bader Ginsburg’s vote and Chief Justice John Roberts’ adherence to precedent. But we now have the next generation of the Supreme Court, reconstituted after the passing of Justice Ginsburg and the additions of Justices Brett Kavanaugh and Amy Coney Barrett. There are now six conservatives who have all indicated disapproval of Roe v. Wade and its ruling on reproductive choice–and these Justices were nominated for this very purpose. The math is simple: there is a solid majority to overturn Roe.***
The only remaining question then is how far the Court will go in overturning abortion rights. One possible outcome is that the Court will also recognize a fundamental right of personhood protecting potential fetal life—a holding that would block state or federal legislation to guarantee reproductive choice.***
A second possible result is that the Court’s abortion ruling might also encroach on other reproductive rights such as contraception or pregnancy. The Court has shown its willingness to dilute this reproductive right of women by balancing it against the religious viewpoint interests of others, as it did in Burwell v. Hobby Lobby Stores (2014). Such a holding would have negative implications for procreation rights, pregnancy discrimination, and assisted reproduction rights including the frozen embryo cases which have supported the right not to procreate.***
A third possibility is that the Court might go so far as to disembowel all constitutional privacy rights of the family. Justice Thomas argued for this, dissenting in June Medical. The right to abortion and reproductive autonomy recognized in Roe was derived from the text of the Fourteenth Amendment’s protection of “liberty.” In Griswold v. Connecticut (1965), the Court overruled a law banning contraception for married couples, finding that the Constitution protected privacy rights of the home including marriage, sex, and contraception. It located these rights in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Subsequently, the Fourteenth Amendment became the consensus foundation for privacy in its protection of “liberty” against arbitrary government interference. Decades before Griswold, the Court recognized fundamental privacy rights of parenting and procreation. Years after, privacy supported extended family, medical autonomy, marriage equality, and sexual conduct.
Justice Thomas attacked this longstanding recognition of privacy in June Medical. He argued that the broader constitutional right to privacy was baseless. The Griswold Court had been “grasping at straws” and “turning somersaults in history,” he said, to find such a right, thus demonstrating its illegitimacy.
Yet, to the contrary, the many constitutional bases for family privacy establish its ubiquity, not its aberration. Griswold’s “penumbra” casting a broad shadow around the Constitution.***
Finally, it is possible that the Court will foreclose future arguments for abortion rights under equality theory. In Dobbs, attorneys advocating for women’s right argued the availability of abortion was critical to women’s full and equal participation in society. . . . Justice Amy Coney Barrett seems focused on eliminating this legal avenue of equality.