Ending Ros v. Wade Is Just the Beginning for the Far Right

The right wing activist justices on the U.S. Supreme Court appear poised to either overturn or drastically curtail the abortion ruling in Roe v. Wade, something that has been the dream of Christian extremists and Christofascists for decades,  But having followed the far religious right for over thirty (30) years, ending Roe is but a beginning of the rolling back of rights enjoyed by countless Americans that these religious zealots want to accomplish.  Frighteningly, we now have a five justice majority - Chief Justice Roberts is a on the fence - that exaults religious rights/beliefs above all else provided those beliefs fall into the far right Christian category.  The rights of non-Christians and the non-religious and those who have abandoned organized religion entirely simply do not matter to the right wing majority - many of whom openly lied during their nomination hearings - on the Court.  Other things on the Christofascist hit list if you will are contraception, same sex marriage and equal treatment of all religions under the law.  A piece in The Atlantic by a law professor looks at how striking down or gutting Roe v. Wade may be only the beginning of the drive to impose the beliefs of Christian extremists on the majority of Americans.  Here are article excerpts:

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.

Many of the dangers of overruling Roe have been long discussed. If women lose the right to an abortion, pregnancy-related deaths are estimated to rise substantially and suddenly. (Currently, 26 states have so-called trigger laws on the books that would outlaw most abortions the moment the Court reverses Roe.) The impact of Roe’s fall would hit low-income women especially hard, as they’re five times as likely as affluent women to experience unplanned childbearing and twice as likely to face sexual violence.

Those are the dangers of restricting access to abortion. The thing is, the dangers of dispensing with Roe go far beyond abortion, because the legal logic that threatens this particular right could quite easily extend to others, inviting states to try out new laws that regulate choices about whom to marry, whom to be intimate with, what contraception to use, and how to rear one’s own children.

The contention that Roe is uniquely built on a foundation of sand ignores the inconvenient fact that lots of other rights are not expressly articulated in the Constitution. The question that a reversal of Roe accordingly poses is whether the “textualists” and “originalists” on this conservative-heavy Court would allow those implied rights to go by the wayside as well.

Most people tether Roe’s legal foundations to the right to privacy identified in Griswold v. Connecticut, a 1965 decision striking down state laws rendering illegal the use of contraceptives by married couples. The Court ultimately identified a constitutional “right to privacy” within protective “penumbras” that emanate from the Bill of Rights—in particular the First, Fourth, Fifth, Ninth, and Fourteenth Amendments—and reasoned that these penumbras operate to shield “an intimate relation of husband and wife and their physician’s role in one aspect of that relation” from government intrusion. Picking up on Griswold in 1973, the Court in Roe acknowledged that “the Constitution does not explicitly mention any right to privacy,” but seized on the earlier case’s recognition of “a guarantee of certain areas or zones of privacy” to strike down a Texas law criminalizing abortion.

In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating. A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.

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.

Thus, to say that Roe is a one-off constitutional blunder, built on a flimsy foundation, while other rights are grounded in concrete, is a myth—and a dangerous one. Nothing in the Constitution says anything to specifically protect couples’ ability to choose to have sex, use contraception, get married, decide how to educate their children, refuse bodily inspection or medical treatments, and, yes, terminate a pregnancy. From a legal perspective, if Roe falls, it’s hard to see what else will still stand.

Be very afraid.