More Than Abortion At Risk

I am an adoptive father and the uncle of a foster child, I have first-hand knowledge that society is not prepared to handle a sudden increase in the number of unwanted children that would be the result of allowing states like Texas to make abortion illegal. A massive increase in the number of children in the foster care system and those in homes that can’t provide three healthy meals a day is only one consequence of conservative zeal to return to the days when abortion was illegal.

In “What Roe Could Take Down With It” published in The Atlantic, Kimberly Wehle, professor of law at the University of Baltimore, outlines the very real consequences of the Supreme Court’s likely vote to overturn the 1973 Roe v. Wade decision that found a woman has a right to an abortion until the fetus is viable at around 24-28 weeks of gestation.

Professor Wehle points out that the reason overturning Roe v. Wade is about more than abortion is that the legal logic which threatens it could quite easily extend to other rights. Reversing Roe v. Wade invites states to try out new laws that regulate such choices as who you can marry – miscegenation laws made inter-racial marriage illegal until the Supreme Court ruled such laws unconstitutional in 1967 in Loving v. Virginia. Also at risk is the right to choose with whom to be intimate, as homosexual acts were illegal in  several states until 2003 when the Supreme Court ruled those laws unconstitutional in Lawrence v. Texas. It was 1965 when the Supreme Court ruled in Griswold v. Connecticut that the liberty of married couples to buy and use contraceptives without government restriction is protected by the constitution. The education of one’s own children is also at risk as some states made private schools illegal until the Supreme Court ruled it was unconstitutional in Pierce v. Society of Sisters. They are all at risk because none of these rights we are now so accustomed to are specifically stated in the constitution and the current SCOTUS majority claim to be originalists arguing that if it isn’t stated in the constitution it isn’t protected by the constitution.

Wehle says the Court identified a “constitutional ‘right to privacy’ based on the Bill of Rights; in particular the First, Fourth, Fifth, Ninth, and Fourteenth Amendments” reasoning they operate to shield “an intimate relation of husband and wife and their physician’s role in one aspect of that relation” from government intrusion. The “Court in Roe acknowledged that ‘the Constitution does not explicitly mention any right to privacy,’ but seized on the earlier Griswold case’s recognition of ‘a guarantee of certain areas or zones of privacy’ to strike down a Texas law criminalizing abortion.”

Professor Wehle goes on to list other rights and other cases which hinge on the implicit “right to privacy”  or meaning and scope of explicitly stated “liberty” a term which is nowhere defined in the constitution leaving the Court to make that determination. Many of the freedoms we currently take for granted are not specifically stated in the constitution yet many seem to believe they are. The same reasoning that currently protects a woman’s right to terminate her pregnancy was used to determine that couples have the right to use contraception, get married, and decide how to educate their children.

Wehle concludes that “from a legal perspective, if Roe falls, it’s hard to see what else will still stand.” As with other arguments made by conservatives on a variety of topics they don’t seem to understand the consequences of achieving their goals.

Published in the Seguin Gazette - December 8, 2021