America’s Right to Privacy: Overruling Roe v. Wade

By Alex Sicilia

“I am angry because an extremist Supreme Court thinks they can impose their extremist views on all of the women of this country and they are wrong.”Sen. Elizabeth Warren, on the steps of the Supreme Court

“The Republican-appointed justices reported votes to overturn Roe v. Wade will go down as an abomination. One of the worst most damaging decisions in modern history.”Senate Majority Leader Chuck Schumer

“It would mean that every other decision relating to the notion of privacy is thrown into question.” – President Joe Biden

If you have ever dabbled your feet in American politics, it is likely you have heard there is an ongoing debate around abortion rights. It is one of those fundamental debates, like gun rights and the Second Amendment, which has always found its way through the US court system and in front of the Supreme Court.

Watching the news recently you likely have heard America’s highest court in the land is primed to overturn the case Roe v. Wade, which would mean a woman’s right to an abortion is no longer protected under the Constitution. In 1973, the Court voted in favour of establishing abortion as a constitutional protection. In half a century how has this changed so dramatically?

Roe v. Wade: what exactly is it and how does the Constitution protect it?

In 1973, in the case of Roe v. Wade, the Supreme Court ruled that it was a constitutional right for women to be able to obtain an abortion based on the three-trimester structure of pregnancy, where at its basics women were allowed to obtain an abortion up until the third trimester. In 1992, the case Planned Parenthood v. Casey changed the trimester model to a viability approach, defining an abortion to be impermissible once the foetus can survive outside the womb. Regardless, two generations of women have known nothing but a time when abortions were their constitutional right.

The justification for the right to an abortion is rooted in the Fourteenth Amendment. Yes, that Fourteenth Amendment, the very Amendment which freed the slaves and receded the three-fifths compromise. The same Amendment which lawmakers in the House used to impeach Former President Donald Trump in January 2021. Within that Amendment (Section I) is the following line:

“Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

This sentence, specifically “liberty” and “due process”, has been used by the Supreme Court to define a form of general right to privacy under the Constitution, the basis of which was an idea of Former Justice Louis Brandeis. This is key: the idea of a right to privacy, embedded in the due process clause, is the foundation of many landmark cases.

Why, now, could Roe v. Wade be overturned?

The original case was decided 7-2 in favour of Roe, under the Burger Court, and had five Republican-appointed justices join two appointed by Democrats. A case now facing the court, Dobbs v. Jackson Women’s Health Organization, could be decided by at least five of the conservative justices, and in the majority opinion, Justice Samuel Alito states that it is the opinion of the majority that the decisions of “Roe and Casey must be overruled”.

Trump came into the presidency focused on reshaping the system, overhauling immigration, and rattling the economy. As his presidency developed it was increasingly clear that the task of filling empty judicial seats was left to then-Senate Majority Leader Mitch McConnell. Even before Trump became the presumptive nominee McConnell was plotting his judicial takeover.

In February 2016, Justice Antonin Scalia died suddenly in his sleep; this left a vacancy on the Supreme Court for then-President Barack Obama to fill. He attempted with Merrick Garland but McConnell refused to allow any movement to fill the vacancy until the next president. Enter Trump, who nominated Neil Gorsuch, with the Senate scrapping the filibuster on Supreme Court nominations to facilitate this.

Fast forward past Brett Kavanaugh’s confirmation to September 2020 and the sudden death of Justice Ruth Bader Ginsburg. With the election just around the corner and Trump looking increasingly likely to lose, McConnell, who had refused to allow the nomination of Garland in an election year, hastily accepted the nomination and confirmation of Amy Coney Barrett. Trump had only served four years but had nominated three Supreme Court justices, replacing two liberal justices and creating the current 6-3 conservative majority.

The judicial realignment did not stop there. McConnell did not simply halt Obama’s Supreme Court nominations: he also refused lower court nominations. This amounted to numerous vacancies when Trump took office and McConnell, with his Senate majority, filled them with a cohort of young conservative judges. This has ultimately led to cases concerning abortion, healthcare, and gun rights arriving in the courts multiple times in slightly different contexts. For pro-life activists this helped strengthen the strategy of testing the waters, seeing where the precedent of Roe and Casey would crack.

The Dobbs case, and Alito’s majority opinion, is the fruit of McConnell’s roughly eight-year campaign. McConnell reshaped the courts to his world view. Pro-life activists have now proven that McConnell’s work is near completion, and those wishing to overturn other judicial precedents can now look to Dobbs.

The right to privacy: what else does it protect?

As stated, the right to privacy, through the Fourteenth Amendment, has been used to settle many cases which the Constitution does not explicitly define as a right verbatim. In fact, Alito argues that one of the reasons the Fourteenth Amendment is not applicable is because “a right to abortion is not deeply rooted in the Nation’s history and traditions.” Therefore the Amendment was never intended to protect such a right. It’s a deeply concerning conclusion.

Many Democrats have pointed to other key Supreme Court cases decided under this privacy notion. Stating two examples: Lawrence v. Texas prevented states from making sodomy illegal via the Fourteenth’s right to privacy as well as Obergefell v. Hodges, the most recent high-profile use, which ruled that states could not prohibit same-sex marriage. An Alito style argument could be made for overruling these cases, where America’s history presents a traditional lack of a right for these rulings.

There is nothing set in stone. In fact, the draft majority opinion could change since justices are free to alter their votes up until the ruling. The Casey case has been referenced a lot, but it merits one final word. The court was set to overturn Roe in a 5-4 vote, but then-Justice Anthony Kennedy flipped during the drafting of the majority opinion. This led to Casey reaffirming Roe, albeit with the viability standard. However, with the current line-up of the votes being at least 5-3 (with Roberts unknown) it seems unlikely Kavanaugh, the least conservative of the known majority, would switch his vote in favour of the liberals.

The underlying fear is still the same. With the right to privacy gone from the Fourteenth Amendment, rights which were thought settled are no longer. The flood gates have been opened and the hard-fought rights of many could be washed away by the Supreme Court.

What does this mean for the Midterms?

If you earn your living through elections, be it operating campaigns or reporting on them, then America is the place to be. It is 2022 and that means it is time to print the ballot papers and bring out the yard signs because the Midterms are in full swing.

The overturning of Roe would be a monumental event in American modern history, worthy of shaking up an election and giving the Democrats some much-needed ammunition against the Republicans. However, Americans have very mixed and complex opinions on abortion, and though it is true most support keeping Roe law it is not a topic which invokes strong opinions in all voters except the most devout.

If abortion rights become the purview of the states, then the impact is likely to be felt more strongly in competitive gubernatorial elections, such as Georgia, or state legislatures across America. The issues which surround federal elections are far-reaching and with the Midterms still six months away, more chaos seems likely before the ballots are cast.

There is, almost certainly, a race which will see the impact of this leak, the Texas 28th. Democrats are set to have a difficult time this cycle and the progressive movement will struggle to make reasonable headway nationally if the Democrats are locked out of the majority. They can, however, make gains internally which would help increase their influence on future Democratic policy stances. Rep. Henry Cuellar is the last anti-abortion Democrat in the House, and he is facing a tough primary against Jessica Cisneros. As Beto O’Rourke challenges incumbent Texas Governor Greg Abbott, who has enacted abortion laws which have subverted the Roe ruling, abortion rights are likely to trickle down the ballot in the Texas primary runoffs.

If Roe and Casey are to be overturned and the right to privacy assumed absent from the Constitution, then America’s judicial system will have beckoned in a new era. It would be one filled with the possibilities that not only will women lose a right they have relied on for decades but that no right, unless guarded by federal law, is settled. The overruling of Roe is far reaching, not just because of what it is, but because of what it also represents: an American’s right to privacy.

Alex Sicilia is a PhD student studying Theoretical Astrophysics who has been following US electoral politics closely since 2014.

Image: US Supreme Court. Author:  Mr. Kjetil Ree, licensed under the Creative Commons Attribution-Share Alike 3.0 Unported2.5 Generic2.0 Generic and 1.0 Generic license.

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