Roe Is One Of Many Things At Stake In Dobbs

The 6-3 conservative majority on the U.S. Supreme Court is poised to overrule Roe v. Wade, despite assurances to Senators and statements in confirmation hearings to the contrary. 

But, as bad as this is (and this is the real deal, not a false alarm to whip up political supporters on both sides this time), it is only the tip of the iceberg. An analysis in The Atlantic magazine explains the larger implications.

The consensus of Supreme Court watchers after Wednesday’s oral argument in Dobbs v. Jackson Women’s Health Organization is that the demise of Roe v. Wade, or at least its dilution to a point that virtually any government-imposed “burden” on abortion would be constitutionally acceptable, is coming. After all, this Court allowed a Texas law effectively banning most abortions after six weeks to stand pending litigation, rejecting multiple pleas for a temporary stay—as clear a signal as any that at least five justices on the current Court have no problem with women’s constitutional rights (as currently recognized) being violated in the interim. . . .

Consider the 1923 case Meyer v. Nebraska, in which the Court struck down a law criminalizing the teaching of German in private schools. “The obvious purpose of this statute,” the Court wrote, “was that the English language should be and become the mother tongue of all children reared in this state.” Although its enactment “comes reasonably within the police power of the state,” the Court found that the law ”unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment”—the precise grounding of the now-precarious individual right to decide whether to carry a fetus to term. Two years later, in Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, the Court struck down an Oregon criminal law forcing parents to send their children to public school. “The manifest purpose” of the law, the Court noted, “is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade.” Citing Meyer, the Court ruled, “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.”

The Court has construed liberty to safeguard numerous other personal safe spaces: the right to marry regardless of race (1967’s Loving v. Virginia) and sex (2015’s Obergefell v. Hodges). The right to use contraception (Griswold). The right to be free from compulsory sterilization by the state (1942’s Skinner v. Oklahoma). The right to be free of government-mandated surgery involving “a virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin” (1985’s Winston v. Lee). And the right to engage in intimate sexual conduct with a partner of one’s choice without fear of criminal prosecution (2003’s Lawrence v. Texas).

In Dobbs, the state of Mississippi’s answer to this line of cases is to suggest that the life of an unborn fetus is especially sacred under the Constitution: “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life,” it claims. 

But saying so does not mean that critics of other privacy-based rights could not find their own reasons why those rights, too, must be balanced against some other competing interest.