Editor’s Note: This article was updated on June 24 to reflect the Supreme Court’s decision to reverse Roe v. Wade. Interviews in this article were conducted before the latest ruling.
The Supreme Court turned the clock back on reproductive rights. In 1973, the Supremes established the constitutional right to an abortion with the landmark ruling Roe v. Wade. But in a 5-4 decision, the justices overturned the ruling in June. Leaving many Americans to grapple with the very real chance that abortion won’t be accessible where they live.
Now, legal experts and abortion rights advocates are sounding the alarm that the court’s decision could have a ripple effect. Especially because the justices argued that Roe v. Wade established a right to privacy that wasn’t written in the Constitution. Here’s what that could mean for similar rights. But first…
What’s the right to privacy got to do with all this?
The 14th Amendment says that people have the right to life, liberty, and due process (aka legal talk for fair treatment). And over the decades, the Supreme Court has essentially said the right to privacy falls under the 14th Amendment's due process clause.
Since at least the 1960s, the bench has used that clause as the basis for rulings around issues like birth control access, interracial marriage, abortion (with Roe v. Wade), and same-sex marriage. Fast forward to now and Justice Samuel Alito called the Roe decision “egregiously wrong.” Arguing that the Constitution doesn’t list the right to an abortion or privacy.
Caroline Polisi, a lecturer in law at Columbia Law School, said this argument raises all kinds of red flags. “The way that the law works in this country, it's built on precedent,” she said. “This opinion will open up the floodgates for a further erosion of these types of unenumerated rights.” This all brings us to…
The rights that could be on the chopping block
In the Court’s decision, it said that the ruling “concerns the constitutional right to abortion and no other right.” But Justice Clarence Thomas also said the bench should "reconsider" other cases involving the due process clause that protected certain rights. Think: Same-sex marriage and access to contraception. And that they could overrule “these demonstrably erroneous decisions.” Meaning: Other rights that were once considered constitutional could soon go away. Here’s what overturning Roe v. Wade could mean for…
These rights are already under attack across the country. Now, advocates worry the following could also be challenged:
Same-sex intimacy. In 2003, the justices ruled in Lawrence v. Texas that states couldn’t criminalize consensual sex acts between gay couples. And said it was a violation of the 14th Amendment to make it a crime.
Same-sex marriage. It’s been less than a decade since SCOTUS said the 14th Amendment requires states to acknowledge that love is love. And grant marriage licenses to gay couples. Conservative justices like Alito have called out the ruling before, raising concerns that same-sex marriage could be at risk if it’s challenged.
Reproductive health and marital rights
A reversal of Roe affects Americans’ decision of when or if to start a family. But this isn’t just about abortion. It’s also about…
Birth control. In 1965, the high court established a right to contraception, specifically for married couples. This case was about a Connecticut law criminalizing the use of birth control. And the justices ruled that the Constitution granted a right to marital privacy. In 1972, that right was extended to single people. Now, advocates worry that contraception — from birth control pills to IUDs to Plan B — could be at risk. Worth noting that birth control isn’t just used for reproductive reasons — many women use it for health issues like migraines, acne, and PCOS.
Interracial marriage. In 1967, the Supremes' decision in Loving v. Virginia quashed laws against marriage between people of different races. Some rights advocates have said this decision could be challenged since the basis for this ruling was also the 14th Amendment.
The foundation for many of the liberties people enjoy today — and may even take for granted — extend beyond abortion rights. Only time will tell whether the Supreme Court will set off a domino effect after overturning Roe v. Wade.
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