The Right to Privacy
If you think, as a resident of Washington State, that you're protected even if Roe is overturned you may be sadly mistaken
Overturning Roe might well be the beginning of a massive rollback of personal rights—if we let it. If the recently leaked draft of a majority opinion overturning Roe v. Wade becomes the final opinion of the court, not only women’s rights are at stake but also much of modern Americans’ understanding of our personal constitutional protections.
In Griswold v. Connecticut, 1965, we citizens were found to possess a constitutionally recognized “right to privacy”. In the case of Griswold that right to privacy extended to the freedom of married couples to buy and use contraception without government restriction. Prior to Griswold some states felt free to outlaw the purchase and use of contraceptive materials—a prohibition many young (and not so young) people today can barely imagine in our United States.
It is this same “right to privacy”, written into the majority opinion in Griswold by Justice William O. Douglas, that guarantees a woman’s right to terminate a pregnancy before fetal viability outside the womb (Roe v. Wade, 1973).
The five Supreme Court Justices who seem bent on overturning the protections for women under Roe v. Wade are implicitly rejecting William O. Douglas’ concept of the right to privacy upon which Roe rests. All five are “originalists” of one flavor of another. If they see fit to reject Roe and the right to privacy on which it is based, nothing else that rests on the right to privacy, nor, indeed, a lot of precedent set since the New Deal can be considered safe.
I remember being taught in high school that the U.S. Constitution, along with its amendments, including the Bill of Rights, protected individual rights against the tyranny of the majority. Among those rights, I was taught, was the right to privacy, a right not spelled out in so many words, but a right that arose both from common law and, by extension, from rights explicitly granted in the Constitution and amendments, particularly the Due Process Clause of the 14th. I was also taught in high school that precedents, once established by the Supreme Court, almost always become settled law.
Overturning Roe v. Wade signals that the freedoms that I was taught in high school were guaranteed by the Constitution and by precedents established by the Supreme Court are imaginary; that states (and/or the federal government itself) may pass laws meant to control the most personal aspects of our lives, including, but not limited to, the purchase and use of birth control, our private sex lives (Lawrence v. Texas, 2003), and our rights to marry (Obergefell v. Hodges, 2015).
Make no mistake: Alito’s draft is a reactionary assault not only on women but on all of us who thought the basic conduct of our private lives was constitutionally protected.
In its immediate consequences, Alito’s draft, if it remains the majority opinion, would throw law-making around abortion to the discretion of the states, that is, each state could enact whatever laws it wished to restrict a woman’s right to control her own body. For residents of Washington State Governor Inslee and Attorney General Bob Ferguson offer a deceptive complacency: Washington women’s right to an abortion, they point out, was assured by voter initiative in 1970, three years before Roe was decided. A state initiative, however, is no match for a federal prohibition imposed by a Republican Congress and signed by a Republican President.
We are at watershed moment in the history of our country. Five Supreme Court Justices who were put in office by Presidents George W Bush and Donald Trump, both presidents who gained office based on a minority of the popular vote, now seem poised (along with Justice Thomas) to toss out the right to privacy that underpins the understanding of personal freedoms that most Americans alive today grew up believing were guaranteed. They want to take us backward. They are not conservative, they are reactionary. They have only a minority mandate yet they are willing to tear down the protections the rest of us thought we possessed.
Overturning Roe v. Wade by taking over the federal judiciary has been Republican orthodoxy since Republican operatives, hoping to advanced their business interests, sold themselves to Evangelical Christians in the mid-1970s. Do not for a minute think they will stop after overturning Roe v. Wade. The next step, already contemplated, is to put enough Republicans in Congress and a Republican President in office who will vote for a federal prohibition of abortion.
Cathy McMorris Rodgers would vote to federally outlaw abortion and thereby override Washington’s 1970 voter initiative. Any of McMorris Rodgers’ concerns about “states’ rights” would evaporate in an instant. Anyone who votes for a Republican and still expects to keep a right to privacy in the conduct of their own life is making a big mistake. Republican voters who consider themselves “fiscally conservative and socially liberal” can no longer pretend to have it both ways.
Keep to the high ground,
P.S. I thought this was pretty rich. CNN reports:
GOP Sen. Susan Collins [a Republican who always says she supports abortion rights] said on Tuesday that a Supreme Court draft opinion that would overturn Roe v. Wade published by Politico was "completely inconsistent" with what Justice Neil Gorsuch and Justice Brett Kavanaugh "said in their hearings and in our meetings in my office."
What fantasy world does she live in? All the clips from hearings with these Supreme Court nominees show them saying that Roe is established precedent, an obvious statement. Not one of them said that being established precedent would keep them from overturning it… Originalists disdain the right to privacy—and no one but an originalist would be put forward by the Federalist Society, a group devoted, for business reasons, to setting us back to the time before the New Deal.