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The Supreme Court heard oral arguments on Dec. 1 in a case that legal observers predict will be the nail in Roe v. Wade’s gradually hollowed coffin. A majority of justices seemed poised to rule for the plaintiff-appellees in Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law that would outlaw almost all abortions after 15 weeks of pregnancy. The petitioners have asked the Court to overrule Roe, a landmark case holding that the Fourteenth Amendment provides a fundamental right to privacy that protects the right to have an abortion. Fundamental rights are currently constitutionally protected from government interference via substantive due process doctrine and reviewed with the highest level of scrutiny. The Washington v. Glucksberg criterion is used to identify fundamental rights. The standard holds that a fundamental right must be “deeply rooted in this [n]ation’s history and tradition” and include a “careful description” of the asserted liberty interest. However, the Supreme Court can later retract the fundamental right status.  Beyond invalidating Roe, already narrowed in 1992 by Planned Parenthood v. Casey, Dobbs could transform decades of jurisprudence about fundamental rights conferred by the Fourteenth Amendment’s inferred right to privacy and liberty interest doctrine. Constitutional claims outside of the abortion context have been affirmed using this privacy framework and could be subverted should Roe and Casey fall. Precedents regarding the rights to marriage, parenting, childrearing, individual control of medical decisions, contraception, and sexual intimacy may also be at risk.

Roe’s critics contest this jurisprudence in several rationales. Debates over originalism, a theory that constitutional text should be interpreted with the original public meaning at the time of ratification, offer one such insight. Justice William Rehnquist’s dissent in Roe and opinion in Casey showcase these disputes. They contend that the Constitution does not protect the right to terminate a pregnancy as states limited abortion when the Fourteenth Amendment was adopted in 1868. The originalist view rejects arguments that abortion is constitutionally protected through a fundamental right to privacy “implicit in the concept of ordered liberty[.]” Opponents of Roe also claim that abortion was not specified as a fundamental right and merits only rational basis review, the lowest scrutiny level. An article in the conservative Georgetown Journal of Law and Public Policy drafted a hypothetical opinion overruling Roe with this rationale. “This Court did not actually hold in Roe that abortion was a ‘fundamental constitutional right, but instead stated: ‘Where certain ‘fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.’… nowhere mentions abortion as a fundamental right, or strict scrutiny analysis, or the need to ‘narrowly tailor’ regulations.” The 2018 article concludes that stare decisis should not protect the precedent, writing that “Roe v. Wade is forty-five years old, but we have overruled decisions of much longer duration… Despite forty-five years, Roe has never become settled.”

Other Fourteenth Amendment decisions that run afoul of originalism, face skepticism as fundamental rights, or infer rights based on privacy grounds remain on the books. Among them are: Loving v. Virginia, which struck down interracial marriage bans; Obergefell v. Hodges, which recognized same-sex marriage; Griswold v. Connecticut, which protected married couples’ liberty to use birth control without government encroachment; Eisenstadt v. Baird, which recognized the right of unmarried people to possess contraception; Lawrence v. Texas, which shielded private and consensual sexual acts; Meyer v. Nebraska, which affirmed parental rights over children’s education; and Cruzan v. Director, Mo. Dept. of Health, which enshrined the right to decline medical treatment. Overturning Roe could potentially threaten these rulings if state or private actors challenged the rights they protect.

Some legal spectators consider these possibilities hyperbolic and say the likelihood that these rulings could be in danger is slim. One argument against concern is that lawsuits that could imperil these rulings are unlikely to be initiated. As an example, a future prohibition on interracial marriage or a ban on birth control would seem inconceivable in modern times. Government officials would not enact laws that their constituents disapprove of — or, more cynically, representatives would not propose legislation that could hurt them politically. Skeptics also contend that as the federal judiciary and Supreme Court fear that they will lose legitimacy or become irreparably politicized, they will self-police with internal constraints to avoid these perceptions. Another counterargument distinguishes Roe from other fundamental rights cases, claiming that other rulings correctly identify fundamental rights or should survive without originalist theory. These theories are plausible, but some are weaker than others. It is credible that some battles, like fighting laws against interracial marriage, have been won. Many politicians are strategic in how to choose their battles and some justices have actively tried to combat the perception the legal institution is broken. However, there are pitfalls to these claims. Other legal fights, like those involving discrimination against LGBTQ people, are at a fever pitch. There is no shortage of politicians who actively act against their constituents’ interests. While some judges are deeply concerned about legitimacy, others would be enthusiastic to enact ideological ambitions without concern for it.

The most powerful repudiation of the skeptics came from the architect of SB8, the Texas abortion law that criminalizes abortion after six weeks of pregnancy absent life-threatening circumstances. In a brief supporting the Mississippi law at issue in Dobbs, the potential to undermine precedents decided on the basis similar to Roe was explicitly recognized — and invited the Court not to hesitate should it feel necessary.

“Supporters of Roe have correctly observed that this Court has recognized and enforced other supposed constitutional ‘rights’ that have no basis in constitutional text or historical practice… there are other court-imposed ‘substantive due process’ rights whose textual and historical provenance are equally dubious… GriswoldLawrenceObergefell,” the brief states. “This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”

Threats to substantive due process rulings are real — the question is whether they become reality.

Christina Coleburn is a J.D. candidate at Harvard Law School.