A decision overruling Roe v. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment’s guarantee of liberty. This line of cases goes back to a 1923 decision guaranteeing parents the right to raise their children free of undue state intervention, and it includes the right to marry, the right to engage in adult sexual relationships and the right to use contraception.
In 1992’s Planned Parenthood v. Casey, the court emphasized this jurisprudence’s connection to abortion rights, insisting that the very essence of “liberty is the right to define” one’s self through the selection of a partner and the decision to become a parent. Such decisions, the court cautioned, are so fundamental to the person that they should not be made “under compulsion of the state.”
The problem, of course, is that the right to define oneself, like the right to abortion, is not expressly enumerated in the Constitution. Which means if Roe falls, it will imperil these other rights of intimate life — the right to marry the person of your choice, the right to procreate on your own terms — that have been inferred from the Constitution’s basic principles and protections.
In a brief submitted in support of Mississippi, the conservative lawyers Adam Mortara and Jonathan Mitchell, the architect of Senate Bill 8, the Texas law that bans abortion at just about six weeks, made clear what is next in a post-Roe world: “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage.” After all, these “judicial concoctions” are, as Mortara and Mitchell put it, “as lawless as Roe.”
From a Post-Roe United States to a Post-Roe World
Sonia Corrêa, a research associate at the Brazilian Interdisciplinary Association for AIDS in Brazil, where she is a co-chair of the Sexuality Policy Watch program.
As someone who has fought for abortion rights since the late 1970s, I vividly remember how Roe v. Wade propelled the global political legitimacy of abortion rights. Today, the United States risks becoming one of the very few countries in the world to restrict abortion rights in the 21st century.
Yet the image of the United States as an outlier from the rest of the world, while technically accurate, conceals the role it has played in advancing anti-abortion forces abroad. The hidden thread began with the Helms amendment, adopted right after Roe v. Wade to ban the use of foreign assistance funds for abortion. The thread continued with the Gag Rules of 1984, 2001 and 2017, which blocked funding to foreign health organizations if they even counseled women about abortion.