Right-to-privacy? Here are 5 landmark Supreme Court rulings that could be in danger if Roe v. Wade is overturned
With Republican-appointed justices now having a 6-3 majority on the U.S. Supreme Court, the overturn of Roe v. Wade could be fast approaching. The end of Roe would not automatically mean the end of legal abortion in the United States. Roe, a landmark 1973 Burger Court ruling, essentially legalized abortion nationwide — and if the High Court were to rule that Roe was wrongly decided, the legality of abortion would be decided on a state-by-state basis. But the repercussions of Roe being overturned go way beyond abortion rights.
Roe is an example of what legal scholars call a right-to-privacy decision. According to the right-to-privacy argument — which has been championed by liberals and progressives as well as right-wing libertarians like former Supreme Court Justice Anthony Kennedy — government has no business dictating what adults do when it comes to sexual practices, contraception or access to sexually explicit material. And if Roe falls, there is no reason to believe that other key right-to-privacy decisions will not be in danger as well.
Here are five landmark Supreme Court rulings that are likely to be on the chopping block if Roe v. Wade is overturned.
1. Griswold v. Connecticut (1965)
When the Burger Court handed down its landmark Roe v. Wade decision 48 years ago, it drew on previous right-to-privacy rulings — and one of them was 1965's Griswold v. Connecticut. The Griswold in that case was the late feminist Estelle T. Griswold, who aggressively challenged a Connecticut law forbidding the use of contraception by married couples (that law was passed in 1879). Griswold, executive director of Planned Parenthood in Connecticut, argued that government had no business telling married couples whether or not they could use contraception. And in 1965, the Supreme Court under Chief Justice Earl Warren (a Republican appointee of President Dwight D. Eisenhower) agreed with her. The Connecticut law was struck down along with similar prohibitions in other states.
Just as Roe was a nationwide victory for abortion rights, Griswold was a nationwide victory for married couples who wanted to use contraception. It is a decision that the Christian right detests as vehemently as it detests Roe, and if Griswold were overturned, red states could move to outlaw contraception for married couples.
After Kennedy announced his retirement in June 2018, Genevieve Scott — a senior staff attorney for the Center for Reproductive Rights — warned that if Roe is in danger, Griswold is in danger as well. Scott told Salon, "An extremely conservative justice who would be interested in overturning Roe v. Wade would also be a threat to the right to contraception. The future of both access to abortion and access to birth control, as well as women's reproductive rights when they are pregnant, is really on the line here…. The privacy right that is recognized in Roe v. Wade is actually derived, in part, from the prior decision in Griswold v. Connecticut."
2. Lawrence v. Texas (2003)
Although Kennedy was nominated for the Supreme Court by President Ronald Reagan in 1987, he was a champion of the right-to-privacy concept. The right-wing libertarian was a fiscal conservative, but he often sided with the late Justice Ruth Bader Ginsburg and other liberal justices when it came to right-to-privacy issues — and one of the most important decisions that he authored was in 2003's Lawrence v. Texas, which struck down a Texas sodomy law and, by extension, similar laws all over the United States. Lawrence was a huge victory for gay rights, infuriating the Christian right.
If Roe were struck down, Lawrence would be on the chopping block as well. The reasoning behind Lawrence — that government has no business dictating the sexual behavior of gay adults — drew heavily on the right-to-privacy reasoning of Roe and Griswold. And if the High Court decided that Lawrence was wrongly decided, states would once again be free to pass laws criminalizing gay sex.
3. Obergefell v. Hodges (2015)
Kennedy not only came together with Ginsburg in Lawrence, but also, in Obergefell v. Hodges — the landmark right-to-privacy ruling that, in 2015, legalized same-sex marriage nationwide. Thanks to Obergefell, individual states cannot have laws prohibiting men from marrying other men or women from marrying other women. And if Roe were overturned, the Christian right would be hopeful that Obergefell could be overturned as well.
Far-right evangelical fundamentalists view Obergefell as an assault on religious freedom, which it isn't. Under Obergefell, individual churches are under no obligation to marry same-sex couples if they don't want to; Obergefell leaves that up to the churches. But same-sex couples now have a legal right to get married, whether they do so at a justice of the peace or through churches that accept gay marriage. Obergefell has beena win-win situation for both gay rights and religious freedom — even though the Christian right doesn't see it that way.
4. Stanley v. Georgia (1969)
In 1969, Earl Warren's last year as chief justice, the Supreme Court handed down one of its most important right-to-privacy decisions: Stanley v. Georgia, which said that Americans have a legal right to possess sexually explicit adult material even if that material is obscene. That doesn't mean that the material in question cannot be prosecuted for obscenity, but it does mean that the person possessing it cannot be prosecuted for obscenity. Thanks to Stanley, no one in the U.S. can be prosecuted for obscenity for downloading a porn movie online as long as the participants are consenting adults; U.S. obscenity law, under Miller v. California, has to do with creation and distribution, not simple possession.
If Roe and Griswold go down, Stanley is likely to be overturned as well. And the importance of Stanley goes way beyond porn. As the Christian right sees it, sex education material is obscene — and if the Supreme Court were to strike down Stanley, teachers could be prosecuted for obscenity merely for having sex education material on their hard drives.
For that matter, having sexually explicit songs on one's hard drive could become risky in a post-Stanley America. Imagine the Christian right telling Americans they could be prosecuted for obscenity merely for downloading a Lil' Kim or N.W.A recording.
5. Eisenstadt v. Baird (1972)
In 1972, the U.S. Supreme Court's decision in Eisenstadt v. Baird expanded the rights of Griswold to unmarried couples — saying that if married couples have a right to use contraception, so do unmarried couples. If the Supreme Court overturns Roe and Griswold, Eisenstadt could be struck down as well.
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