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IDEAS

With Roe v. Wade, much more than abortion is at stake

The 1973 ruling has supported an expansive view of privacy rights, from the bedroom to our personal data, that now might be called into question.

A candlelight vigil outside the Supreme Court in 2003, on the 30th anniversary of the Roe v. Wade decision.
A candlelight vigil outside the Supreme Court in 2003, on the 30th anniversary of the Roe v. Wade decision.NICHOLAS ROBERTS/AFP via Getty Images

It is not lost on anyone that the addition of one more conservative Supreme Court justice will threaten Roe v. Wade and abortion rights. What fewer know is the extent to which that 1973 Supreme Court ruling has had effects well beyond abortion. In arriving at its decision, the court redefined what the Constitution meant for individual privacy — and whose privacy counted.

This aspect of Roe’s legacy may come as a surprise given that almost no one likes the reasoning of the original opinion. The decision held that a constitutional right to privacy — although no such right is spelled out in the Constitution’s text or history — was broad enough to encompass the decision to end a pregnancy. Roe defined privacy in a new way, arguing that a person’s rights of autonomy and self-determination trumped the government’s interests in protecting life and health, even when it came to something as controversial as abortion.

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Abortion foes despise Roe because the opinion not only recognized a right to choose abortion but also rejected the very idea of fetal personhood. But even those who supported legal abortion found Roe unconvincing. Constitutional scholar John Hart Ely, who favored the outcome in Roe, argued that the decision’s right to choose was “not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Because the court’s ruling focused extensively on doctors' freedom to practice medicine without government interference, feminists complained that Roe smacked of medical paternalism. And because the 7-2 ruling rooted its reasoning in privacy rather than equal rights for women, the late Justice Ruth Bader Ginsburg, a staunch advocate for reproductive justice, believed that Roe was hard to defend — and likely intensified fights about abortion.

Yet despite its flaws, a range of social movements derived their legal legitimacy from Roe. In the 1970s, civil libertarians and advocates for LGBTQ rights made Roe a cornerstone of arguments against laws that criminalized consensual sexual intimacy. The American Civil Liberties Union used Roe to challenge laws that punished sex (and cohabitation) outside of marriage. For decades, those fighting for a right to die also made Roe into a formidable weapon.

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It wasn’t just progressives who used the Roe decision to rethink the scope of personal privacy. In the 1970s, conservatives worried about data privacy looked to Roe. Barry Goldwater, a conservative icon, and his son, Representative Barry Goldwater Jr., viewed the spread of computers and the sale of data as a profound threat to personal liberty. They cited Roe as proof that the Constitution protected personal control over sensitive data.

Even conservatives skeptical of the medical establishment have cited Roe. During the COVID-19 pandemic, access to unproven drugs has once again become a political issue. In the 1970s, when cancer research had just begun, consumer-rights activists, along with members of the far-right John Birch Society, invoked Roe in demanding access to any kind of treatment, no matter the risks.

Today, most people thinking about Roe are focusing solely on abortion. Antiabortion leaders can take credit for that. From the beginning, abortion foes fought for a right to life that would ban all abortions. But by the 1980s, when that proved impossible, the antiabortion movement changed course, taking aim at the Roe decision. To undermine public support for Roe, antiabortion leaders equated the decision both with abortion and with judicial activism. That interpretation suited the Republican Party as well. At the time, the GOP was desperate to hold together a coalition of fiscal and social conservatives with disparate views on abortion. If a Republican president had done anything concrete to restrict or ban abortion, it may well have backfired. Equating Roe with judicial overreach seemed to be a perfect solution.

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For many, Roe became a symbol of our nation’s most divisive issue. For others, Roe simply was a reminder of what is wrong with the federal judiciary.

But the decision’s idea of privacy still matters. Shortly before Roe, the court had also defined an expansive privacy right in two cases involving birth control, Griswold v. Connecticut and Eisenstadt v. Baird. Yet Roe’s idea of privacy broke new ground. It tied privacy to equality for women (and other marginalized groups). This idea of autonomy shaped later Supreme Court decisions on everything from sexual intimacy to same-sex marriage. In other nations considering constitutional protection for abortion, Roe still has tremendous power, even as advocates for reproductive rights develop different (and potentially more effective) arguments. From revenge porn to contact tracing or targeted advertising, data privacy claims rely on the importance of self-determination. Roe helped to solidify this idea.

Other Supreme Court decisions, including Griswold or Obergefell v. Hodges, the court’s same-sex marriage decision, could protect some of these rights. But if the court finds one autonomy-based right unconvincing, others could well be at risk.

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Anyone concerned with the right to choose has reason to worry that the court will soon upend abortion jurisprudence. But the fallout from reversing Roe could go much further. True, it is hard to find a right to abortion in the text or history of the Constitution. But the same is true of birth control, parenting, marriage, and procreation. A court persuaded to overturn Roe might rethink those rights too. If a conservative court consigns Roe’s idea of autonomy to the dustbin, we should ask where the revision of our constitutional norms will end.

Mary Ziegler is a law professor at Florida State University and author of “Abortion and the Law in America: Roe v. Wade to the Present.”