Roe v. Wade: A Woman’s Right to Choose and More
By Adam W. Marshall, Esq.
Within the eighteen months following his inauguration, President Donald Trump nominated candidates to fill two vacancies on the Supreme Court. Given the ages of Justice Ginsburg (85) and Justice Breyer (80), it reasonable to expect that there may be other opportunities for the president to name additional justices during the second half of his term.
Candidate Trump stated that, as president, he would appoint only pro-life justices who would overturn Roe v. Wade. To most people, Roe v. Wade is synonymous with a woman’s right to access abortion services. While the significance of Roe in relation to the continued existence of the right to choose cannot be overstated, Roe involves a right of privacy that extends beyond the pro-choice/pro-life debate
Throughout the history of the Supreme Court, a constitutional right of privacy has been generally recognized. However, nowhere in the Constitution is there an explicit mention of a right of privacy.
Often when “privacy” is concerned, the Court has looked to other places in the Constitution that address specific rights (e.g., the First Amendment’s rights of free speech and free exercise of religion; the Fourth Amendment’s protection against unreasonable search and seizure; the Fourteenth Amendment’s prohibition against deprivation of life, liberty or property without due process) to find a guarantee of various “zones of privacy.” The Court has determined that these zones evidence an overall intent by the Constitution’s framers to safeguard privacy, at least with respect to rights that are considered either fundamental or implicit within the concept of liberty, and that the Constitution permits the Court to declare that enumerated protections can cover behaviors not specifically mentioned in the Constitution.
This is what the Court did in Roe; while a right to obtain an abortion is not spelled out in the Constitution, the right of privacy is broad enough, whether through the Fourteenth Amendment’s concept of liberty or the Ninth Amendment’s reservation of rights to the people, to encompass a woman’s right to choose to terminate her pregnancy.
Roe and other cases relying on the “penumbra” of rights contained in the Constitution have been cited in subsequent decisions as authority for determining that other activities are also included under the right of privacy. One such decision involving LGBTQ rights is Lawrence v Texas in 2003. In Lawrence, the Court declared anti-sodomy laws to be unconstitutional, overruling its prior decision only 17 years earlier that allowed anti-sodomy laws to stand. There is nothing in the Constitution that addresses sexual intimacy between same-sex couples, but the Court, looking to Roe, other prior cases and the Due Process Clause of the Fourteenth Amendment, ruled in 2003 that constitutional protection in this context was consistent with the framers’ intent.
Determining the framers’ intent with respect to rights not explicitly stated in the text of the Constitution is not a theory of constitutional interpretation with which everyone is comfortable. The late Justice Antonin Scalia believed that, if the Constitution literally says nothing about a particular behavior, and if that behavior has been disallowed by longstanding traditions of American society, there is no protection for that behavior under the Constitution. While Justice Scalia was not a member of the Court when Roe was decided, he disagreed with the majority opinion in Lawrence and filed a strongly worded dissenting opinion, finding no basis for constitutional protection.
President Trump has pledged to offer Supreme Court nominees that are “like Justice Scalia;” a majority of the Court may therefore soon agree that only those rights specifically spelled out in the Constitution deserve constitutional protection. It, of course, remains to be seen whether such a majority takes hold and whether and which precedents involving the right of privacy are at risk. The potential implications are greater than any one issue.
