{"id":12842,"date":"2021-12-02T13:51:02","date_gmt":"2021-12-02T18:51:02","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12842"},"modified":"2021-12-02T15:41:30","modified_gmt":"2021-12-02T20:41:30","slug":"roe-may-be-the-first-domino-to-fall-in-the-series-of-fundamental-rights","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/roe-may-be-the-first-domino-to-fall-in-the-series-of-fundamental-rights\/","title":{"rendered":"Roe May Be the First Domino to Fall in the Series of Fundamental Rights"},"content":{"rendered":"

Photo Credit: AP<\/em><\/p>\n

The Supreme Court heard oral arguments on Dec. 1 in a case that legal observers predict will be the nail in Roe v. Wade<\/em>\u2019s gradually hollowed coffin. A majority of justices seemed poised to rule for the plaintiff-appellees in Dobbs v. Jackson Women\u2019s Health Organization<\/em><\/a>, 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<\/em><\/a>, 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<\/a> doctrine and reviewed with the highest level of scrutiny. The Washington v. Glucksberg<\/em><\/a> criterion is used to identify fundamental rights. The standard holds that a fundamental right must be \u201cdeeply rooted in this [n]ation\u2019s history and tradition\u201d and include a \u201ccareful description\u201d of the asserted liberty interest. However, the Supreme Court can later retract<\/a> the fundamental right status. \u00a0Beyond invalidating Roe<\/em>, already narrowed in 1992 by Planned Parenthood v. Casey<\/em><\/a>, Dobbs<\/em> could transform decades of jurisprudence about fundamental rights conferred by the Fourteenth Amendment\u2019s 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<\/em> and Casey<\/em> fall. Precedents regarding the rights to marriage, parenting, childrearing, individual control of medical decisions, contraception, and sexual intimacy may also be at risk.<\/p>\n

Roe<\/em>\u2019s critics contest this jurisprudence in several rationales. Debates over originalism<\/a>, 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\u2019s dissent<\/a> in Roe <\/em>and opinion<\/a> in Casey<\/em> 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 \u201cimplicit in the concept of ordered liberty[.]<\/a>\u201d Opponents of Roe<\/em> also claim that abortion was not specified as a fundamental right and merits only rational basis review<\/a>, the lowest scrutiny level. An article<\/a> in the conservative Georgetown Journal of Law and Public Policy<\/em> drafted a hypothetical opinion overruling Roe<\/em> with this rationale. \u201cThis Court did not actually hold in Roe<\/em> that abortion was a \u2018fundamental constitutional right, but instead stated: \u2018Where certain \u2018fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a \u2018compelling state interest\u2019 and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.\u2019\u2026 nowhere mentions abortion as a fundamental right, or strict scrutiny analysis, or the need to \u2018narrowly tailor\u2019 regulations.\u201d The 2018 article concludes that stare decisis should not protect the precedent, writing that \u201cRoe v. Wade<\/em> is forty-five years old, but we have overruled decisions of much longer duration\u2026 Despite forty-five years, Roe<\/em> has never become settled.\u201d<\/p>\n

Other Fourteenth Amendment decisions<\/a> 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<\/em><\/a>, which struck down interracial marriage bans; <\/em>Obergefell v. Hodges<\/em><\/a>, which recognized same-sex marriage; <\/em>Griswold v. Connecticut<\/em><\/a>, which protected married couples\u2019 liberty to use birth control without government encroachment; Eisenstadt v. Baird<\/em><\/a>, which recognized the right of unmarried people to possess contraception; Lawrence v. Texas<\/em><\/a>, which shielded private and consensual sexual acts; Meyer v. Nebraska<\/em><\/a>, <\/em>which affirmed parental rights over children\u2019s education; and Cruzan v. Director, Mo. Dept. of Health<\/em><\/a>, which enshrined the right to decline medical treatment. Overturning Roe<\/em> could potentially threaten these rulings if state or private actors challenged the rights they protect.<\/p>\n

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 \u2014 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<\/a> or become irreparably politicized, they will self-police with internal constraints to avoid these perceptions. Another counterargument distinguishes Roe<\/em> 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<\/a>, 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<\/a> against LGBTQ people<\/a>, are at a fever pitch. There is no shortage of politicians who actively act against their constituents\u2019 interests. While some judges are deeply concerned<\/a> about legitimacy, others would be enthusiastic<\/a> to enact ideological ambitions without concern for it.<\/p>\n

The most powerful repudiation of the skeptics came from the architect<\/a> of SB8, the Texas abortion law that criminalizes abortion after six weeks of pregnancy absent life-threatening circumstances. In a brief<\/a> supporting the Mississippi law at issue in Dobbs<\/em>, the potential to undermine precedents decided on the basis similar to Roe <\/em>was explicitly recognized \u2014 and invited the Court not to hesitate should it feel necessary.<\/p>\n

\u201cSupporters of Roe <\/em>have correctly observed that this Court has recognized and enforced other supposed constitutional \u2018rights\u2019 that have no basis in constitutional text or historical practice\u2026 there are other court-imposed \u2018substantive due process\u2019 rights whose textual and historical provenance are equally dubious\u2026 Griswold<\/em>\u2026 Lawrence<\/em>\u2026 Obergefell<\/em>,\u201d the brief states. \u201cThis is not to say that the Court should announce the overruling of Lawrence<\/em> and Obergefell<\/em> if it decides to overrule Roe<\/em> and Casey <\/em>in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence<\/em> and Obergefell<\/em>, while far less hazardous to human life, are as lawless as Roe<\/em>.\u201d<\/p>\n

Threats to substantive due process rulings are real \u2014 the question is whether they become reality<\/em>.<\/p>\n

\n

Christina Coleburn is a J.D. candidate at Harvard Law School.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Photo Credit: AP The Supreme Court heard oral arguments on Dec. 1 in a case that legal observers predict will 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