Tracy Thomas, Seiberling Chair of Constitutional Law and the Director of the Center for Constitutional Law at the University of Akron School of Law, discusses the future of Roe v. Wade in the wake of current Supreme Court makeup and cases...
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.
Of course, Roe v. Wade (1973) has already been overturned. The original decision recognized a fundamental right of reproductive choice and required strict scrutiny of any governmental interference with that constitutional right. Under that strict analysis, the balanced tipped towards permissible government regulation of abortion only after the point of viability at 24 weeks when the potential for life became a compelling public interest.
Twenty years later, the Court in Planned Parenthood of SE Pennsylvania v. Casey (1992) overturned the analytical framework of Roe by requiring lesser judicial scrutiny of abortion regulations under the more permissive undue burden standard. States now only had to show that there laws did not impose an “undue burden” on women’s right, thus permitting regulation and interference from early in pregnancy. This became the judicial standard, applied to uphold a variety of laws including waiting periods, anti-abortion counseling, mandatory ultrasounds, and funding prohibitions.
What’s 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 foundational premise of Roe recognizing a fundamental constitutional right of reproductive choice. In June Medical, Justices Alito, Thomas, Gorsuch and Kavanaugh showed their disagreement with the right of choice and their willingness to overturn precedent.
Only Chief Justice Roberts offers any accommodation of women’s right to choose. In June Medical, he penned a concurrence on the importance of adhering to precedent, given that the exact same admitting privileges law had been struck down by the Supreme Court four years earlier in Whole Women’s Health v. Hellerstedt (2016). During the oral arguments in Dobbs, he seemed to favor a middle ground, like upholding the 15-week ban as a balance and recognition of alleged modern scientific viability. But Roberts has been the only one making these arguments. Given the composition of the Court, his vote no longer matters.
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. This has been the pro-life community’s long game. Justice Thomas signaled his acceptance of the personhood right in his dissent in June Medical. Justice Kavanaugh fought back against this possibility at oral argument in Dobbs, seeking a judicial and constitutional neutrality on abortion that would presumably preclude recognition of personhood right and thus leave open the option of legislative pro-choice laws.
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, encompasses the totality of privacy protections rather than serving as an ephemeral mist of suspicious foundation. Heading off claims of “Lochner-ism” and judicial policymaking, the Griswold Court grounded the privacy right in multiple constitutional texts all focused on the centrality of the home. This was consistent with the originalist understanding at common law of the domestic sphere of the home and family as separate and protected from government intervention. The Ninth Amendment retains these common-law rights for the people. The First Amendment protects rights of association and intimacy in family relationships. The Fourth protects the “sanctity of the home” and the “privacies of life” against unwarranted search and seizure. And the Third Amendment too, seemingly irrelevant to modern rights in its proscription against quartering soldiers in the home, can also be viewed as protecting the home and family within.
A decision in Dobbs that cuts away the entirety of the privacy rights threatens all of these familial rights—a result that may not be appreciated by the Court. Disavowing the constitutionality of liberty rights would impact the rights of family, parenting, marriage, homeschooling, and refusal of medical treatment—rights that conservatives have trumpeted as much as progressives. For example, Justice Scalia and Justice Thomas supported the fundamental rights of parenting in Troxel v. Granville (2000). And right to work cases, including some recent Covid restriction challenges, recognize a liberty interest in occupation and freedom of contract, even while applying rational basis scrutiny.
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. Equality had been argued as the main theory advanced in one of the earliest reproductive rights cases, Cleveland Board of Education v. LaFleur (1974). The Court, however, used due process to strike down mandatory retirement policies for pregnant teachers, following its precedent from Roe one year earlier. Justice Ginsburg argued that equality theory might provide a better foundation for abortion rights. And historically, nineteenth century women’s rights leaders argued for reproductive choice and “voluntary motherhood” on theories of equality, and twentieth-century feminist leaders made the explicit connection between reproductive control and full economic and social equal opportunity for women.
Justice Amy Coney Barrett seems focused on eliminating this legal avenue of equality. Her questioning in Dobbs suggested that equality concerns underpinning abortion were a thing of the past. She discounted the impact of prohibiting abortions for women and coercing parenthood by arguing that women could avail themselves of the alternative of adoption through safe haven laws. Her assertion that personal and practical impediments to women’s equality are now gone could narrow the way the Court addresses gender equality, threatening other legal rights against pregnancy discrimination or sexual harassment. This makes the Equal Rights Amendment more important than ever to provide a constitutional amendment that would enshrine women’s equality rather than rely on fickle judicial deference that is unlikely to last.
A realist must accept that the Supreme Court will overturn the constitutional right to abortion in the next few months, a right that has been recognized and relied upon for 50 years. The only question is what other rights it will take down with it.
Tracy Thomas is the Seiberling Chair of Constitutional Law and the Director of the Center for Constitutional Law at the University of Akron School of Law. She is editor of the Gender & the 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-Managing Editor. Please direct any questions or comments to her at email@example.com
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