Tracy Thomas, Seiberling Chair of Constitutional Law and Director of the Center for Constitutional Law at Akron University Law School, discusses the future of Roe v. Wade following the composition and current Supreme Court cases …
The Supreme Court will overturn the law recognizing a woman’s basic right to choose an abortion. The only question is whether this will go even further and jeopardize women’s equality, reproductive rights and the right to family privacy for all.
Pending before the Court is Dobbs v. Jackson Women’s Health Organization and the question of the constitutionality of Mississippi’s 15-week abortion ban. The most recent abortion court decision, June Medical Services v. Russo (2020), regarding physician admitting privileges for providers, linked to the right to wire abortion, linked by Justice Ruth Bader Ginsburg’s vote and Chief Justice John Roberts’ endorsement of the precedent. But now we have the The next generation of the Supreme Court, reconstituted after the death of Justice Ginsburg and the additions of Justices Brett Kavanaugh and Amy Coney Barrett. There are now six Conservatives who have all indicated they disapprove of Roe vs. Wade and his decision on reproductive choice – and those judges were appointed for this purpose. The math is simple: there is a solid majority to overthrow Roe deer.
Sure, Roe vs. Wade (1973) has already been canceled. The original decision recognized a fundamental right of reproductive choice and called for a rigorous review of any government interference with this constitutional right. Under this strict analysis, the balance shifted towards permitting government regulation of abortion only after the 24-week viability point, when life’s potential became a compelling public interest.
Twenty years later, the Court of Planned Parenthood of SE Pennsylvania v. Casey (1992) upset the analytical framework of Roe deer by requiring less judicial review of abortion regulations under the more permissive excessive demand standard. States only needed to show that their laws did not place an “undue burden” on women’s rights, thus allowing regulation and interference from the onset of pregnancy. It became the judicial standard, applied to obey a variety of laws including waiting periods, anti-abortion counseling, mandatory ultrasounds and funding bans.
What is new now is that the Court is likely to go much further than tinkering with the judicial balance: it is now focused on undoing the fundamental premise of Roe deer recognizing a fundamental constitutional right of reproductive choice. In June Medical, Justices Alito, Thomas, Gorsuch and Kavanaugh have shown their disagreement with the right of choice and their willingness to overturn precedents.
Only Chief Justice Roberts offers accommodation to women’s right to choose. In June Medical, he wrote an agreement on the importance of adhering to case law, given that the same law on admission privileges had been struck down by the Supreme Court four years earlier in Whole Women’s Health c. Hellerstedt (2016). During the oral argument in Dobbs, it appeared to foster common ground, such as maintaining the 15-week ban as a balance and acknowledging the supposed modern scientific viability. But Roberts was the only one to make these arguments. Given the composition of the Court, its vote no longer matters.
The only question that remains then is how far the court will go to nullify abortion rights. One possible outcome is that the court will also recognize a basic personality right protecting potential fetal life – a ruling that would block state or federal law to guarantee reproductive choice. It’s been the pro-life community’s long game. Justice Thomas signaled his acceptance of human rights in his dissent in June Medical. Justice Kavanaugh fought back against this possibility during the pleadings in Dobbs, seeking judicial and constitutional neutrality on abortion which would likely exclude the recognition of human rights and thus leave open the option of pro-choice legislative laws.
A second possible outcome is that the court ruling on abortion could also infringe 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 interests of others, as it did in Burwell v. Hobby Lobby Stores (2014). Such detention would have negative implications for reproductive rights, discrimination in pregnancy and assisted reproduction rights, including cases of frozen embryos that supported the right not to procreate.
A third possibility is for the Court to go so far as to exclude all constitutional rights to family privacy. Judge Thomas pleaded for this, dissident in June Medical. The right to abortion and reproductive autonomy recognized in Roe deer was derived from the “liberty” protection text of the Fourteenth Amendment. In Griswold v. Connecticut (1965), the Court struck down a law prohibiting contraception for married couples, ruling that the Constitution protected the privacy rights of the household, including marriage, sex and contraception. He located these rights in the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. Subsequently, the Fourteenth Amendment became the consensual foundation of privacy in its protection of “liberty” from arbitrary government interference. Decades before Griswold, the Court recognized the fundamental rights to the privacy of parenthood and procreation. Years later, privacy is taken care of extended family, medical autonomy, matrimonial equality, and sexual conduct.
Justice Thomas attacked this long-standing recognition of privacy in June Medical. He argued that the broader constitutional right to privacy was without merit. the Griswold The Court had “seized the straw” and “turned the galleys of history”, he said, to find such a right, thus demonstrating its illegitimacy.
Yet, on the contrary, the many constitutional bases of family private life establish its ubiquity, not its aberration. GriswoldThe “twilight” of, casting a broad shadow around the Constitution, encompasses the full range of privacy protections rather than serving as a fleeting haze of suspicious ground. Avoid claims of “”Lochner-ism ”and the development of judicial policies, the Griswold The Court has founded the right to privacy in multiple constitutional texts, all of which focus on the centrality of the home. This was in keeping with the original common law conception that the domestic sphere of the home and family was separate and protected from government intervention. the Ninth amendment preserves these common law rights for the people. The First Amendment protects the rights of association and privacy in family relationships. The fourth protects the “sanctity of the home” and the “Intimacy of life” against unjustified searches and seizures. And the Third Amendment too, seemingly unrelated to modern rights in its ban on quartering soldiers in the house, can also be seen as protecting the house and family inside.
A decision in Dobbs which removes all rights to privacy threaten everything of these family rights — an outcome which may not be appreciated by the court. Denying the constitutionality of the rights to liberty would have an impact on the rights of the family, parenthood, marriage, home education, and refusal of medical treatment –rights that the conservatives have praised as much as the progressives. For example, Judge Scalia and Judge Thomas argued for the fundamental rights of parenthood in Troxel v. Granville (2000). And right to work cases, some of which recent Covid restriction challenges, recognize a right to freedom of occupation and freedom of contract, even applying a rational examination of the bases.
Finally, the Court may rule out future arguments in favor of the right to abortion under equality theory. In Dobbs, lawyers defending women’s rights argued that the availability of abortion was essential for the full and equal participation of women in society. Equality had been invoked as the main theory advanced in one of the first cases of reproductive rights, Cleveland Board of Education v. LaFleur (1974). The court, however, used due process to overturn mandatory retirement policies for pregnant teachers, following its precedent of Roe deer one year earlier. Justice Ginsburg argued that the theory of equality could provide a better basis for abortion rights. And historically, 19th century women’s rights leaders pleaded for reproductive choice and “voluntary motherhoodOn equality theories, and twentieth-century feminist leaders have made the explicit link between reproductive control and full economic and social equality of opportunity for women.
Judge Amy Coney Barrett seems focused on eliminate this legal path to equality. His questioning in Dobbs suggested that the equality issues underlying abortion are a thing of the past. She downplayed the impact of the ban on abortions for women and the coercion of parenthood by arguing that women could avail themselves of the alternative of adoption through safe haven laws. Her assertion that personal and practical barriers to women’s equality have now disappeared could limit how the Court approaches gender equality, threaten other legal rights against discrimination related to pregnancy or sexual harassment. This makes the Modification of equal rights more important than ever to provide a constitutional amendment that enshrines women’s equality rather than relying on fickle judicial deference that is unlikely to last.
A realist must accept that the Supreme Court overturns the constitutional right to abortion in the coming months, a right recognized and invoked for 50 years. The only question is what other rights he will take away with him.
Tracy Thomas is the Seiberling Chair in Constitutional Law and Director of the Center for Constitutional Law at Akron University Law School. She is editor-in-chief of Gender and Law Prof Blog.
Suggested citation: Tracy Thomas, The End of Roe and More, JURIST – Academic Commentary, December 27, 2021, https://www.jurist.org/commentary/2021/12/tracy-thomas-end-of-roe/.
This article was prepared for publication by Katherine Gemmingen, commentary co-editor. Please direct your questions or comments to [email protected]
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