A leaked draft of a possible majority ruling by the U.S. Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization (2021) was published May 2 by POLITICO.

Written by Justice Samuel Alito, the draft ruling argues that Roe v Wade (1973) and Planned Parenthood v. Casey (1992) must be overturned.

He argues: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

While SCOTUS confirmed that the draft is authentic, it is important to note that the leaked draft is not a formal ruling.

It is not uncommon for the court to internally circulate drafts of both possible majority and minority rulings. The SCOTUS statement on the leaked draft described this practice as “a routine and essential part of the Court’s confidential deliberative work.”

The court is not expected to issue an official decision on Dobbs until June. As the nation awaits that announcement, it is important to reflect on the significance of overturning Roe and its impact upon personal privacy.

In 1973, SCOTUS struck down an existing Texan abortion law as unconstitutional in a 7-2 decision, arguing that it violated the due process clause of the 14th amendment.

“This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the majority opinion stated. “The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”

As an aside, it should be noted that it was a majority of Republican-appointed justices who ruled against the Texas law.

In essence, Roe v. Wade does not make abortion legal but protects a woman’s right to reproductive privacy. While many will see this distinction as the splitting of judicial hairs, the distinction matters because Roe is more about reproductive privacy than legalizing a medical procedure.

If Roe is overturned, then the debate over the constitutionality of a right to privacy will return.

The right to privacy impacts everything from abortion and contraception to vaccine mandates and what we do with our spare time. The debate goes back to the Comstock Laws and ultimately comes to fruition with Griswold v Connecticut in 1965.

The Comstock Laws were a series of acts passed by the U.S. Congress beginning in 1873. The acts made it illegal to use the U.S. Postal Service to mail or distribute pornographic literature, contraceptives and drugs that could be used for an abortion.

Most states followed suit, developing similar laws to restrict the distribution of sexual materials and contraceptives. Such restrictions were seen as necessary to promote public morality.

By the early 20th century, many of the old Comstock laws had been revoked or states simply ignored them. By the 1950’s, Massachusetts and Connecticut were the only states that still had laws prohibiting contraceptives for married couples.

Prior to the 1950s, contraceptives were not openly discussed. Physicians would address such issues in private conversations with patients.

This changed when Planned Parenthood became more vocal in Connecticut. They opened their first clinic in the state in 1935. Four years later, the Waterbury clinic became engrossed in controversy and was forced to comply with Connecticut’s 1879 anti-contraception statute.

A series of legal challenges arose, questioning the constitutionality of the state’s Comstock laws. Tileston v Ullman (1943) and Poe v Ullman (1961) unsuccessfully argued for the legalization of contraceptives for married women on the basis of patient safety.

Estelle Griswold, executive director of Planned Parenthood in Connecticut, and Lee Buxton, the medical director of Planned Parenthood, took matters a step further by opening a birth control clinic in Haven, Connecticut, in 1961.

The opening was public and a direct challenge to the law. Griswold and Buxton were promptly arrested and fined $100. The appellate court and the Connecticut Supreme Court upheld their convictions, paving the way for a SCOTUS challenge.

On June 7, 1965, the high court ruled 7-2 in favor of Planned Parenthood, arguing that the U.S. Constitution guarantees a right to “marital privacy.”

Unlike the later decision in Roe, the court’s argument did not use the due process clause of the 14th Amendment or cite the Fifth Amendment in establishing a right to privacy. Rather, the justices argued that the right to marital privacy was implied in the Bill of Rights as a whole.

Justice William Douglas explained in the majority ruling: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. … We have had many controversies over these penumbral rights of ‘privacy and repose.’ These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.”

In essence, the Bill of Rights implies that such a right to privacy exists.

It is important to note that both Justices Hugo Black and Potter Steward dissented on the grounds that a right to privacy is not specifically stated in the Constitution, thus rejecting the penumbral argument.

Griswold paved the way for Eisenstadt v Baird (1972), which allowed contraceptives for unmarried couples and established a right to contraceptives for juveniles decided in Carey v Population Services international (1977).

Griswold is cited in Lawrence v Texas (2003), which struck down the Texas sodomy laws and the 2015 ruling in Obergefell v Hodges, which legalized same-sex marriage.

Most notable was Griswold’s impact upon Roe in establishing a right to reproductive privacy.

All of this brings us back to the present. Overturning Roe, which is heavily dependent upon an appeal to the 14th amendment and implied by Griswold, brings us back to a discussion of the right to privacy.

While the constitution does protect against unlawful search and seizure, there is no specific protection of personal privacy. If it is not assumed that the Bill of Rights contains a penumbral right to privacy, then what private acts are protected?

There is more at stake than simply a right to abortion or birth control. It is unclear what private acts will retain legal protection.

Therefore, regardless of your position on abortion, overturning Roe deserves serious consideration of unintended consequences.

Share This