Cracks in the Foundation

An analysis of the potential aftermath of overturning Roe v. Wade


Courtesy of Wikimedia

Abortion rights activists often argue that Roe is integral in our court’s case law.

Abortion has been repeatedly challenged in this country since it was first made available. People all across the United States have various views on whether or not the procedure should be legal, translating to various degrees of legality in different states. In 1973, a woman named Norma McCorvey, anonymised as Jane Roe, decided to challenge Texas’s ban on abortion. With the help of feminist lawyers, they took the case to the Supreme Court, who then established a Constitutional right to have an abortion. However, the legal framework establishing this decision is likely soon to be overturned due to the leaked draft opinion, and could affect many adjacent cases.

Roe was egregiously wrong from the start,” Justice Samuel Alito wrote. “​​It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” He is correct, in the sense that the right to privacy is never explicitly mentioned in the United States Constitution; however, the argument from the time was that privacy is an implied right. In Griswold v. Connecticut (1965), a case about regulations on the access of contraceptives, the Supreme Court held that the people have a right to privacy from the government, as a conclusion drawn from multiple Constitutional Amendments.

Alito’s draft opinion, however, appears to strike down the precedent of privacy which has been the law of the land for 57 years. It eliminates a foundational legal framework for many influential cases; the political and judicial landscape in the United States after this case could be vastly different from the one today. For example, without the implied right to privacy, the right to purchase contraceptives or the right for consenting parties of the same sex to perform intercourse could be at risk, not to mention eliminating the standard legalization of abortion.

In Lawrence v. Texas (2003), two gay men successfully took a case to the Supreme Court, after being fined for having sex under Texas’s anti-sodomy law. The Court held that under the privacy precedent established in Griswold and upheld in Roe, the government had no Constitutional authority to police the bedroom. While cultural attitudes have certainly shifted and it appears much less likely that a party would challenge the ruling in Lawrence, with the same logic from Alito’s leaked draft opinion, the decision could be overturned. If it were to be, 15 states have legacy laws which would criminalize same-sex behaviour.

Alito, however, differentiated his logic from Roe compared to cases like Lawrence or Griswold, by saying that their rulings stood because abortion entails the loss of fetal life. According to Alito, because the other cases do not involve such a substantial moral question as abortion, the logic does not extend. However, some people believe that his draft opinion is inherently political.

“The court is meant to be a nonpolitical body. Supreme Court Justices are not elected by the people and yet, they continue to amass political power and make choices that directly restrict our rights. The decision by the court to take on overtly political cases and act in an overtly political manner is a betrayal of their duty to our country,” said Marianna Pecora (‘22), who interns for Congressman Scott Peters and volunteers for advocacy group Voters of Tomorrow.

Additional court cases, like the gay marriage case Obergefell v. Hodges (2015), may not rely on the right to privacy reasoning like Roe does; however, the court’s conservative majority may take steps to overturn it. Justice Alito himself has said in the past in a joint statement with Justice Thomas that the court’s legalization of gay marriage was not based well enough in the Constitution. “The court read a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text,” he said in 2020.

The opinion, while signed onto by the majority of Supreme Court Justices, is still a draft, though. The date at the top lists its creation as February, and opinions may change from when it was drafted and when the Supreme Court is poised to release their official ruling, most likely in June. However, in all likelihood, the United States will probably see a different nation after the decision is released. One where access to abortion depends on residency and wealth, one where previously solid precedents are at risk, and one where the reputation of the Supreme Court is questioned. If a draft leak opinion could cause the uproar it did, no one knows what will happen when the official opinion is published.