Overturning Roe is just the beginning

The Supreme Court’s likely overruling of its landmark 1973 decision in Roe v. Wade will have the immediate effect of making most abortions illegal in more than 20 states. It will also unleash latent state battles regulating or forbidding not just abortion but a large penumbra of other personal rights.

Gay rights, contraception and laws regulating consensual sex will almost certainly be challenged by the court’s activist conservative majority, with internet and other privacy protections quite likely next.

Reading a combination of explicit constitutional protections of individual liberties into what a 7-2 majority saw as an implicit right to privacy, the heart of the Roe decision was that there are constitutional limits on government’s ability to regulate individual behavior. The 1965 decision in Griswold v. Connecticut was the key precedent, where the court ruled that an 1879 Connecticut statute that banned any form of contraception was an unconstitutional invasion of personal privacy.

Although the Griswold decision was not uncontroversial, the question of privacy rights did not became a major political issue until Roe and, later, the Senate’s 1987 rejection of President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. Although Bork’s radically conservative positions on a number of issues were at issue, his explicit denial of a constitutionally protected right to privacy was the deciding factor. The fledgling Federalist Society, then a small group of conservative lawyers, judges and professors, made the issue its key concern.

From its largely academic origins, the Federalist Society has grown into a powerful force in Republican politics, able, under Trump, to provide the short lists from which his three nominees to the Supreme Court were selected. They joined three existing Federalist Society members to form the court’s 6-3 conservative majority.

With the court rejecting Roe, Griswold is almost certainly next. Since many of the 24 state laws banning contraception are still on the books (though unenforced since the ruling), birth control will become immediately illegal in many states and perhaps a new issue in others. Next, in all likelihood will be the 2003 case of Lawrence v. Texas, which voided a law banning homosexual sodomy. More general sodomy laws will surely come back into force, bringing the police back into American bedrooms.

Less certain, but not unlikely, will be laws protecting privacy in other areas, including a more general right to be left

Even the long-standing ban on the publication of individual tax returns may be in question if national rights to privacy no longer exist.

alone. Whether school, credit and health records, phone conversations, and internet communications can still legally be protected is not at all clear, but the court has already signaled that its protections of privacy are over. Tellingly, in its ruling against COVID mask requirements, the court refused to consider privacy concerns as an issue, instead ruling against the government on technical grounds. The court’s position — that the federal government cannot require private corporations to protect their workers’ health and safety under the Occupational Safety and Health Act — suggests that it would almost certainly not sustain attempts to protect those employees from invasions of what could now be a nonexistent right to privacy.

Whether individual states can enact such laws without national guidelines is not clear; but the draft decision overturning Roe strongly suggests that there can be no such federal guidelines or law. Even the long-standing ban on the publication of individual tax returns may be in question if national rights to privacy no longer exist.

Pushed to the extreme, moreover, it may even be that state laws regulating, for example, disclosures of phone and internet records will be overruled as restraints on interstate commerce.

We are at the pinnacle of a very slippery slope.

The court’s conservative activists will be with us for many years. Proposals to pack the court are, quite simply, silly, as what can be packed by a narrow Democratic majority can as simply be unpacked by future congresses. What is plausible is adoption of an amendment to the Constitution explicitly adding the right to privacy, a national policy that both libertarians of the right and civil libertarians of the left might well unite to support.