Report: Roe and Intersectional Liberty Doctrine

Roe was a watershed decision, and became an immediate nemesis for abortion opponents. But its place in constitutional doctrine does not begin, or end, with abortion rights. Instead, Roe is one in a line of seminal opinions through which the Supreme Court has developed the liberty doctrine as a source of substantive rights. Those rights encompass abortion, but extend much farther.

This report discusses rights other than abortion that the Constitution’s liberty doctrine protects. It begins by explaining the doctrinal underpinnings of the right to liberty, showing how the Supreme Court strengthened that doctrine in Roe and subsequent abortion cases, including Planned Parenthood v. Casey. It will explore how the opinions and reasoning in Roe and Casey helped legitimize and bolster rights that the Court had previously recognized, but in weaker terms, hampered by the absence of a robust liberty framework that the abortion cases provided.

It then examines additional rights the Supreme Court has recognized by building on Roe and Casey, including some rights that are poised for additional development – but only if liberty doctrine remains strong. It closes by underscoring why abortion cannot be debated in a constitutional vacuum: undermining any of these major abortion decisions would weaken not just the right to abortion, but also a range of other rights that protect our personal lives from improper government intrusion.