Does overturning Roe v. Wade put other constitutional freedoms at risk?
- Abortion was legalized nationwide following the 1973 Supreme Court Roe v. Wade and Doe v. Bolton decisions. Since then, there have been roughly 62 million US abortions.
- On May 2, 2022, POLITICO released an initial 98-page draft written by Justice Samuel Alito noting the majority of the Supreme Court had voted down the Roe v. Wade decision, asserting, “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.”
- In response to the leaked draft, President Biden stated, “This is about a lot more than abortion” mentioning the potential ruling could affect privacy rights, like same-sex marriage, access to birth control, and LGBTQ rights.
- MarketWatch reported on various polls regarding Roe v. Wade. A January 2022 CNN poll found that 69% of Americans want to leave the ruling as is, while 30% want it overturned.
The Supreme Court’s potential overturn of Roe v. Wade is a forewarning of a fundamental shift toward a system of minority rule. Conservatives have achieved a supermajority on the court, even though four of these justices were appointed by presidents who lost the popular vote. This is significant because while the majority of Americans view long-settled cases as stable and the precedents they set as the law of the land, a focused and vocal minority of ultra-conservatives have managed to use the outsized power of the judicial system to press for issues which could never make it through a more evenly divided legislature. It’s no coincidence that this is happening when Republicans seem myopically focused on culture war issues such as trans and LGBTQ+ rights. Following a possible success in overturning Roe, it’s not difficult to imagine these same individuals turning their efforts toward other fundamental rights.
Those expressing concern that overturning Roe v. Wade may lead to rollbacks of other rights have good reason to express their outrage. Groups such as the Alliance Defending Freedom have used their deep pockets to drum up challenges to basic rights surrounding employment discrimination and gender identity issues. The ADF, in particular, is so extreme in its views that the Southern Poverty Law Center has labeled them a hate group. This group—and many other individuals in this supercharged political environment—have crafted cases to defend discrimination on behalf of bigoted bakers and defend Hobby Lobby’s desire not to cover contraceptive measures. Ultimately, many of these cases may end up in front of the Supreme Court. If Roe is overturned, we can be sure we’ll see more challenges to other rights.
First of all, relying on the 14th Amendment's due process clause to find a 'right to privacy' for Roe v. Wade to pass constitutional muster has always been dubious. Yet that's what happened with the Roe v. Wade ruling in 1973. Essentially, the SCOTUS ruling concluded that prohibiting abortion violated one's right to privacy by restricting a person's ability to choose to have the procedure done. Notably, even pro-choice scholars like Kermit Roosevelt have said, 'As constitutional argument, Roe is barely coherent.'
It's important to remember that any Supreme Court ruling on abortion is specific to that case and would have little impact on freedoms actually found in the Constitution. To suggest otherwise can be seen as a scaremongering tactic to pressure the Supreme Court to reverse course.
But let's be clear--certain constitutional freedoms have been under attack for years, and the 2nd Amendment is chief among them. In addition, some have been pushing for strict limitations on free speech—as speech codes on college campuses or campaigns to root out 'disinformation' suggest. Another example is the newly formed Disinformation Governance Board, which, under the federal government's oversight, restricts speech that it alone deems 'disinformation.' Additionally, during the pandemic, the 1st Amendment's right to peaceably assemble was unconstitutionally limited in the name of health and safety.
Roe v. Wade was always built on a shaky constitutional foundation. Freedoms that people claim could be next, such as gay marriage, are on much more solid constitutional grounds than abortion. As noted above, some constitutional freedoms do remain at risk, but not because Roe v. Wade may be overturned.