3 Ways Roe v Wade is Not About Abortion
Marking the 40th anniversary of Roe v. Wade is important not just because it’s a reminder that the landmark decision decriminalized a crucial component of women’s health care, but because the decision reaffirmed a commitment to individual privacy that extends, by virtue of our common humanity, to all people.
In so doing, Roe v. Wade didn’t just protect the right to abortion but to all aspects of personal intimate privacy that, should Roe be overturned, could fall with it. That’s because while the decision affirmed a woman has the right to decide to terminate a pregnancy free from government interference prior to viability, it did so by continuing earlier precedent that embraced the idea of a sphere of personal privacy in intimate relationships. To strike down Roe would require striking at that sphere of personal privacy. Here are a couple of examples as to just how those dominoes would fall.
1. The Right To Raise Your Kids As You See Fit
Conservatives criticize the central holding of Roe and its embrace of a “penumbra” of privacy rights that stem from the Fifth and Fourteenth Amendments, yet without those protections there is no guarantee the government could not try to further regulate child-rearing. Prior to Roe, the Supreme Court had ruled that a person’s decision to have a child and a parent’s decision in how that child is to be educated are to be considered an exercise of familial rights and are therefore protected by the Constitution.
The decision in Roe both relies on and strengthens that underlying principle by holding that the decision to parent — or not to become a parent — is best made when it is free from unwarranted and unnecessary government intrusion. Without that privacy right, the government could further dictate child-rearing decisions, including outlawing homeschooling or taking away school choice from parents.
2. The Right To Keep, Or Not Keep Your Family Ties
Similar to familial rights to make parenting decisions free from unnecessary government intervention, the very same privacy rights protected by Roe also protects family decisions of how, and who, we can call family. For example, the Supreme Court has held that state zoning regulations that prevented close relatives from living together violated this privacy right embedded in Roe and that the decision is one that courts have used to consistently acknowledge a ‘private realm of family life which the state cannot enter.’ That means states cannot reasonably outlaw co-habitation of consenting adults or place unreasonable restrictions on single-sex housing. For example, prior to Roe and the line of privacy cases that came before it, municipalities were free to craft laws that prevented unmarried adults from living together as a way to try and prevent gay couples from living together.
While this may seem like a no-brainer, as our families become more diverse and look less like the nuclear family religious conservatives elevate as sacrosanct, this idea of a private realm of family life becomes even more important. This will be even truer should the Supreme Court strike down Prop 8 and DOMA this term. Our families are changing and, thanks in part to Roe, we can take some comfort in the idea that even if conservatives don’t like it, there’s not much they can do about it. Thanks to our constitutional privacy protections, our families can be constructed how we see fit. Undo those protections and that freedom is instantly called into question.
3. The Right To Keep Your Business Your Business
It’s impossible to discuss personal privacy rights and not talk about sex. After all, the right to define familial boundaries, to have or not have a child, and ultimately to consent to sex all hinge in some way on the idea that sex is something private, personal and not to be shared under most circumstances with the government. Roe’s embrace of privacy rights is what made the push against criminal sodomy laws possible and led to those laws that did criminalize sodomy being declared unconstitutional in 2003.
So yes, the legacy of Roe v. Wade is one we’ve living now in the daily battle against the movement to re-criminalize abortion. But it is also one we are living daily as we push forward in the march for equality for our LGBT brothers and sisters. The details of our most personal decisions do not need to come under governmental scrutiny, nor should our right to make those decisions come up for popular vote. As Roe v. Wade recognized, those rights are part and parcel from the liberty we all are entitled to by virtue of our humanity — an important point worth stressing as the right crows about its plans to undo Roe once and for all.
Photo from opensourceway via flickr.