In a recent New York Times editorial, columnist David Brooks argues that politicians should agree to a federal 20-week abortion ban to win over votes, while failing to acknowledge that abortion bans are placeholders for overturning Roe v. Wade. State legislatures across the country have adopted nearly 400 laws since 2010 making abortion harder to get. States like North Dakota have already attempted banning abortion at six weeks, thwarted only by federal courts blocking such bans as blatantly unconstitutional.
While out of sync with almost seven in 10 Americans, committed anti-abortion voters and politicians want nothing less than to overturn Roe. Brooks thinks that compromise is fine—since only “roughly 21 states would outlaw abortion.” Not only does he disregard women’s fundamental rights in this calculation, he overlooks the collateral damage that would result from walking back an ironclad commitment to defending Roe. The women who would bear the brunt would be young or low-income, women of color, or those who otherwise can’t take days off from work, arrange for child care, travel, and pay for all of this, plus the abortion, out-of-pocket. Senate bill S.2311 also threatened doctors with prosecution, criminalizing a protected women’s health procedure and creating an atmosphere of fear. As a global organization, we have seen what can happen when abortion is criminalized and women are entangled in the criminal justice system as a result of poor pregnancy outcomes or for decisions that they have the legal right to make.
Reproductive rights simply aren’t something to compromise away. Doing so would signal that women’s health, lives and status as equal members of society are expedient bargaining chips. But there are also broader consequences, consequences that would not only harm women who need access to abortion but also risk eroding many of the essential rights that are fundamental to American life.
That’s because Roe is not only foundational to our basic reproductive rights, it has also become an essential thread in the Supreme Court’s ongoing analysis of the constitutional promise of liberty for all and its application in important life decisions—including marriage, pregnancy prevention, family formation, even our choice of sexual partners. After all, Roe doesn’t exist in isolation. In its 45-year history, Roe has been affirmed nearly 40 times and cited as an essential legal foundation for scores of cases involving our most basic personal freedoms.
The right of individual liberty has always played a central role in American political thought, as reflected in the Declaration of Independence’s language that among “unalienable rights” are “Life, Liberty and the pursuit of Happiness.” The Supreme Court has had dozens of opportunities to explore and elaborate on what liberty means in the context of our lives. Each decision becomes precedent for cases that follow, forming an interconnected underpinning within the law. A cornerstone precedent like Roe reaches both backward and forward in time: From the past cases it elaborated on, to the later cases it influenced.
Overturning such a precedent would involve uprooting a half-century of judicial decision-making, with profound consequences for our most cherished rights and essential freedoms—reaching far beyond abortion.
In deciding that liberty protects abortion in Roe—and in subsequent decisions affirming and elaborating on Roe, like Planned Parenthood v. Casey (1993) and Whole Woman’s Health v. Hellerstedt (2016)—the court looked to several early 20th century rulings, finding that our basic choices about family relationships, childrearing, and personal decision-making are protected by our right to liberty.
Those precedents included seminal decisions like Loving v. Virginia (1967), which protected the right to interracial marriage and influenced Roe in its recognition that personal liberty protects zones of private life against government intrusion.
Roe was also built on two decisions holding that the Constitution protects the right to use contraception. Griswold v. Connecticut (1965) affirmed the right for married couples to use contraception, while Eisenstadt v. Baird (1972) extended the right to use contraception to single people.
The court also looked to lesser-known precedents protecting our liberty rights, like Meyer v. Nebraska (1923), which struck down a Nebraska law prohibiting the teaching of foreign languages in public schools, and Pierce v. Society of the Sisters (1925), which struck down an Oregon law requiring parents to send their children to public school.
Over the last 45 years, Roe and its progeny have served as the foundation for a host of other essential decisions.
The court relied on Roe in deciding the third major case dealing with the constitutional right to contraception, Carey v. Population Services (1977), which struck down a New York law that prohibited the sale of all birth control to minors under 16. And it looked to Casey in recognizing the right to engage in private, consensual sexual activity with the partner of one’s choice in Lawrence v. Texas (2003), which struck down a Texas state law criminalizing intimate sexual conduct between same-sex partners.
Roe has also been essential in cases establishing the right to family formation, like Moore v. City of East Cleveland (1977), which struck down an ordinance that restricted house occupancy to members of a single family.
The Supreme Court notably relied on liberty rights, and the line of cases that Roe and Casey strengthened, in two recent rulings protecting the right of same-sex couples to marry. United States v. Windsor (2013) rejected federal limits on marriage equality under the Defense of Marriage Act (DOMA), while Obergefell v. Hodges (2015) declared state-level bans on same-sex marriage to be unconstitutional.
Indeed, any rollback of Roe or its subsequent affirmations would have a ripple effect, weakening not just the right to abortion, but a range of other rights that protect our diverse life choices. The consequences of politicians’ efforts to overturn Roe would in the short term be devastating to women and in the long term, destructive to the expansive liberties of us all.
Lourdes Rivera is senior vice president for U.S. programs at the Center for Reproductive Rights.