On June 24, 2022, the Supreme Court of the United States overturned their nearly 50 year ruling on Roe v. Wade (1973). While the lawsuit was centered around abortion, the fundamental issue at hand and legal arguments presented by Roe and company were of “absolute privacy”. Ironically, both arguments presented by Roe and the state cited the 14th amendment either in terms of privacy or the protection of life, to which the 14th amendment does not explicitly state a fundamental right to privacy, nor is the language specific enough to support the notion that a fetus or prenatal life is consistent with that of a living person. Because of how vague the constitution reads, many supreme court cases in which constitutionality is questioned do not have a strong support system and are therefore subject to scrutiny and potentially dismantled.
This is the case regarding Roe v. Wade.
Historically, Roe v. Wade has been used as case law or as precedent in determining many other court cases. The issue with using case law is that, as we’ve seen, at any point, the Supreme Court can go back on their decision which, by principle, can cause a chain reaction of reversals on any and all decisions in which that particular case law is used.
As Clarence Thomas, sitting Supreme Court Justice stated in their decision on Dobbs v. Jackson Women’s Health Organization,
“…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”.
For reference,
Griswold v. Connecticut protects the liberty of couples to purchase and use contraceptives without government restriction.
Lawrence v. Texas protects the rights of Americans to perform non-procreative sexual acts in their bedroom without government interference or punishment.
Obergefell v. Hodges protects the fundamental right to marriage for same-sex couples in the United States.
As Thomas shows us, overruling Roe v. Wade has now set the precedent for other cases related to it to come under scrutiny by his and the other justice’s hands.
As stated before, the Constitution does not explicitly define nor guarantee a fundamental right to privacy, instead the Supreme Court stated in their ruling of Roe v. Wade,
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy.”
— Roe, 410 U.S. at 153
It’s important to note how vague the language is to understand just how detrimental the Supreme Court’s decision last month was. Because case law is the only support system we have regarding what many Americans feel is their fundamental right to privacy, not only are we at the mercy of the state, but the pillars of justice that stand are beginning to break down.
No matter what side of the isle you sit, privacy is a right and we must take it back.