Beyond Abortion: Roe and Other Rights

Since the early 20th century, the Court has recognized that family life is protected by the Constitution. Importantly, it was in the Court’s later liberty doctrine decisions, including Roe and Planned Parenthood v. Casey (1992), that the Court strengthened and explained the constitutional grounding of the rights of family members to maintain relationships with each other and to decide how to rear children without unwarranted government interference. By 1996, Court precedents protecting family life were strong enough for Justice Ruth Bader Ginsburg to observe that “although [past cases] yielded divided opinions, the Court was unanimously of the view that ‘the interests of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.”

Supreme Court decisions affirming the right to contraception pre-date Roe v. Wade. Beginning with Griswold v. Connecticut (1965), the Court recognized the right to use contraception as a constitutional privacy right, at first exclusively for married couples, and eventually—using an equal protection analysis—for single people. But it was Roe that strengthened the Fourteenth Amendment protection of “marital, familial, and sexual privacy,” and shaped later cases that ground decisions about contraceptive use together with a range of other personal decisions that are protected liberty interests.

As with abortion, the right to marry is protected through the liberty clause of the Constitution: “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.” Roe and Casey strengthened that protection even further, finding that zones of private life are protected from government intrusion. Recent court decisions supporting same-sex marriage draw on these precedents as well.

Sexual rights are a component of liberty that relies strongly on cases establishing the right to abortion. In 2003 when the Court issued the Lawrence v. Texas decision that recognized the right to same-sex intimate conduct, it did so citing Roe and Casey, quoting both decisions’ language on the importance of autonomy, dignity, and the freedom to make personal decisions without government interference. Without Roe, consensual sexual activity, whether same-sex or opposite-sex, would lose a critical layer of protection.

Liberty protects not only the right to prevent pregnancy and childbirth but the right to have children. Decades before Roe, the Supreme Court recognized that a person compelled to submit to involuntary sterilization would be “forever deprived of a basic liberty.” But it was Roe and Casey, citing this earlier precedent, that helped cement the right to procreate within the realm of the Constitution’s liberty guarantee. The Court has not directly addressed this right since. But today, as new legal questions arise around assisted reproductive technology, courts are likely to address procreation more often. Any erosion of abortion rights would affect the right to procreate at a time of heightened relevance.

“Bodily integrity” requires personal autonomy and the self-determination of human beings over their own bodies. Before Roe v. Wade and Planned Parenthood v. Casey, protections against bodily intrusion, such as forcing criminal suspects to physically produce bodily evidence of drug possession, were not well defined. But Casey cited this earlier line of precedent in placing the right to abortion at the intersection of personal decision-making and government interference. In so doing, Casey established an enduring right to bodily integrity.