Beyond Abortion: Roe and Other Rights

Beyond Abortion: Roe and Other Rights

Donald Trump promised to nominate Justices who would overturn the 1973 Roe v. Wade decision. Justice Anthony Kennedy’s decision to retire from the Supreme Court means the Constitutionally-protected right to safe and legal abortion has never faced a greater threat. But the Court’s Roe decision has implications that transcend safe and legal abortion. Roe binds together an entire class of personal freedoms, all part of the Constitution’s “liberty doctrine.” If Roe is weakened or overturned, it poses a threat to a host of intertwined rights and would impact people seeking to exercise a range of liberty rights, including the fundamental right to marry, to use contraception, or to have children.

The Center for Reproductive Rights produced this analysis of “liberty doctrine” to illustrate how Roe and related Supreme Court decisions provide the Constitutional foundation for basic freedoms essential to the way we live our lives. Read the entire report here.

Family and Child-Rearing

Family & Child Rearing ▾

Since the early 20th century, the Court has recognized that family life is protected by the Constitution. Importantly, it was in the Court’s later liberty doctrine decisions, including Roe and Planned Parenthood v. Casey (1992), that the Court strengthened and explained the constitutional grounding of the rights of family members to maintain relationships with each other and to decide how to rear children without unwarranted government interference. By 1996, Court precedents protecting family life were strong enough for Justice Ruth Bader Ginsburg to observe that “although [past cases] yielded divided opinions, the Court was unanimously of the view that ‘the interests of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.”

Contraception

Contraception ▾

Supreme Court decisions affirming the right to contraception pre-date Roe v. Wade. Beginning with Griswold v. Connecticut (1965), the Court recognized the right to use contraception as a constitutional privacy right, at first exclusively for married couples, and eventually—using an equal protection analysis—for single people. But it was Roe that strengthened the Fourteenth Amendment protection of “marital, familial, and sexual privacy,” and shaped later cases that ground decisions about contraceptive use together with a range of other personal decisions that are protected liberty interests.

Marriage

Marriage ▾

As with abortion, the right to marry is protected through the liberty clause of the Constitution: “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.” Roe and Casey strengthened that protection even further, finding that zones of private life are protected from government intrusion. Recent court decisions supporting same-sex marriage draw on these precedents as well.

Sexual Rights

Sexual Rights ▾

Sexual rights are a component of liberty that relies strongly on cases establishing the right to abortion. In 2003 when the Court issued the Lawrence v. Texas decision that recognized the right to same-sex intimate conduct, it did so citing Roe and Casey, quoting both decisions’ language on the importance of autonomy, dignity, and the freedom to make personal decisions without government interference. Without Roe, consensual sexual activity, whether same-sex or opposite-sex, would lose a critical layer of protection.

Procreation

Procreation ▾

Liberty protects not only the right to prevent pregnancy and childbirth but the right to have children. Decades before Roe, the Supreme Court recognized that a person compelled to submit to involuntary sterilization would be “forever deprived of a basic liberty.” But it was Roe and Casey, citing this earlier precedent, that helped cement the right to procreate within the realm of the Constitution’s liberty guarantee. The Court has not directly addressed this right since. But today, as new legal questions arise around assisted reproductive technology, courts are likely to address procreation more often. Any erosion of abortion rights would affect the right to procreate at a time of heightened relevance.

Bodily Integrity

Bodily Integrity ▾

“Bodily integrity” requires personal autonomy and the self-determination of human beings over their own bodies. Before Roe v. Wade and Planned Parenthood v. Casey, protections against bodily intrusion, such as forcing criminal suspects to physically produce bodily evidence of drug possession, were not well defined. But Casey cited this earlier line of precedent in placing the right to abortion at the intersection of personal decision-making and government interference. In so doing, Casey established an enduring right to bodily integrity.

Medical Decision-Making

Medical Decision-Making ▾

In 1990, the Supreme Court decided two cases that recognized the right to refuse medical treatment as a liberty right within the Fourteenth Amendment. But it was in Planned Parenthood v. Casey (1992) that the Court, citing these earlier cases, directly recognized that governmental interests in protecting life cannot override individual liberty claims regarding autonomy in major medical decisions. Thus, in the broader medical decision-making context, both Roe and Casey provide the framework to assess when government policies rise to the level of unnecessary infringement on personal decisions about our health and lives.

Family & Child-Rearing

Since the early 20th century, the Court has recognized that family life is protected by the Constitution. Importantly, it was in the Court’s later liberty doctrine decisions, including Roe and Planned Parenthood v. Casey (1992), that the Court strengthened and explained the constitutional grounding of the rights of family members to maintain relationships with each other and to decide how to rear children without unwarranted government interference. By 1996, Court precedents protecting family life were strong enough for Justice Ruth Bader Ginsburg to observe that “although [past cases] yielded divided opinions, the Court was unanimously of the view that ‘the interests of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.”

Contraception

Supreme Court decisions affirming the right to contraception pre-date Roe v. Wade. Beginning with Griswold v. Connecticut (1965), the Court recognized the right to use contraception as a constitutional privacy right, at first exclusively for married couples, and eventually—using an equal protection analysis—for single people. But it was Roe that strengthened the Fourteenth Amendment protection of “marital, familial, and sexual privacy,” and shaped later cases that ground decisions about contraceptive use together with a range of other personal decisions that are protected liberty interests.

Marriage

As with abortion, the right to marry is protected through the liberty clause of the Constitution: “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.” Roe and Casey strengthened that protection even further, finding that zones of private life are protected from government intrusion. Recent court decisions supporting same-sex marriage draw on these precedents as well.

Sexual Rights

Sexual rights are a component of liberty that relies strongly on cases establishing the right to abortion. In 2003 when the Court issued the Lawrence v. Texas decision that recognized the right to same-sex intimate conduct, it did so citing Roe and Casey, quoting both decisions’ language on the importance of autonomy, dignity, and the freedom to make personal decisions without government interference. Without Roe, consensual sexual activity, whether same-sex or opposite-sex, would lose a critical layer of protection.

Procreation

Liberty protects not only the right to prevent pregnancy and childbirth but the right to have children. Decades before Roe, the Supreme Court recognized that a person compelled to submit to involuntary sterilization would be “forever deprived of a basic liberty.” But it was Roe and Casey, citing this earlier precedent, that helped cement the right to procreate within the realm of the Constitution’s liberty guarantee. The Court has not directly addressed this right since. But today, as new legal questions arise around assisted reproductive technology, courts are likely to address procreation more often. Any erosion of abortion rights would affect the right to procreate at a time of heightened relevance.

Bodily Integrity

“Bodily integrity” requires personal autonomy and the self-determination of human beings over their own bodies. Before Roe v. Wade and Planned Parenthood v. Casey, protections against bodily intrusion, such as forcing criminal suspects to physically produce bodily evidence of drug possession, were not well defined. But Casey cited this earlier line of precedent in placing the right to abortion at the intersection of personal decision-making and government interference. In so doing, Casey established an enduring right to bodily integrity.

Medical Decision-Making

In 1990, the Supreme Court decided two cases that recognized the right to refuse medical treatment as a liberty right within the Fourteenth Amendment. But it was in Planned Parenthood v. Casey (1992) that the Court, citing these earlier cases, directly recognized that governmental interests in protecting life cannot override individual liberty claims regarding autonomy in major medical decisions. Thus, in the broader medical decision-making context, both Roe and Casey provide the framework to assess when government policies rise to the level of unnecessary infringement on personal decisions about our health and lives.