Beyond Abortion: Roe v. Wade and the Right to Privacy

January 22, 2013 marks the 40th anniversary of the Roe v. Wadedecision. All month, we’ll be running posts examining various aspects of this landmark ruling. If you’d like to contribute, let us know!

Today’s guest post is by Emily Martin, Vice-President and General Counsel, National Women’s Law Center; and Cortelyou Kenney, a Fellow at the Center.

What most people know about Roe v. Wade is that it is the landmark decision establishing a woman’s right to end a pregnancy. What is less well known is that the decision strengthened the legal foundation on which other protections are based as well. In Roe, the Supreme Court solidified the “right to privacy” as part of the liberty protections under the Fifth and Fourteenth Amendments. This protection of liberty and privacy is responsible for certain fundamental guarantees—including the rights to obtain birth control and to procreate, to marry, to develop family relationships, to rear one’s children, and to create intimate relationships. While the concept of a constitutional “right to privacy” predates Roe, Roe is an important affirmation of and foundation for these rights—rights that could be threatened if it were overturned.

Roe reaffirmed the right to obtain birth control and to procreate, and subsequent cases rely on Roe to bolster this right. For example, a 1977 case relied on Roe to invalidate a ban on distribution of nonprescription birth control to adults by anyone other than a pharmacist and a blanket prohibition on sales or distribution of contraceptives to individuals under 16.

 

Roe also helped solidify the right to marry first acknowledged by Loving v. Virginia, which found laws against interracial marriage unconstitutional. For example, a 1978 decision upheld the right of single parents obligated to pay child support to marry without first obtaining the permission of a judge, based in part on Roe.

The Supreme Court has also relied on Roe to hold that the state cannot interfere in family life. For example, the Court overturned a zoning ordinance that blocked a grandmother from living with her grandson, explaining that Roe “acknowledged a ‘private realm of family life which the state cannot enter.’”

The right of privacy also protects parents’ ability to raise their children as they see fit. The Supreme Court has relied on Roe as support for the proposition that “[a] person’s decision whether to bear a child and a parent’s decision concerning the manner in which his child is to be educated may fairly be characterized as exercises of familial rights and responsibilities” protected by the Constitution.

Finally, Roe profoundly influenced the right to form intimate relationships and the corresponding right for adults, including gays and lesbians, to engage in consensual sexual relations in private. These rights were first recognized in a 2003 case that proclaimed “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed . . . the protection of liberty . . . has a substantive dimension of fundamental significance in defining the rights of the person,” such as autonomy in intimate relationships.

Were Roe overturned, it could have ripple effects well beyond the right to an abortion. As privacy cases have recognized, “our laws and tradition afford constitutional protection to personal decisions relating,” among other things, “to marriage, procreation, contraception, family relationships, child rearing” and intimacy. The right to privacy, strengthened by Roe, supports each of these. Overturning Roe could thus erode the ability of individuals to make highly personal decisions free from intrusive government regulations.

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