Why Reversal of Roe Does Not Mean Reversal of Other 'Rights'

Fr. Frank Pavone

June 29, 2022


As we observe the radical abortion supporters continue their meltdown over the reversal of Roe and Casey, we see them making the claim that this is just the first step in some master plan to deprive people of rights related to contraception, sexual relations, and marriage.

This argument was being used well before the decision even came out.

Kamala Harris hosted a virtual meeting with abortion providers on May 19 and in her televised opening remarks said: "The right to privacy that forms the basis of Roe is the same right to privacy that protects the right to use contraception, and the right to marry the person you love, including a person of the same sex. Overturning Roe opens the door to restricting those rights."

Weeks earlier, Joe Biden opined, "It would mean that every other decision related to the notion of privacy is thrown into question." Biden went on to say that LGBTQ children could end up segregated in our schools.

The Dobbs decision answers this objection, and the response is simple: The Supreme Court has acknowledged multiple times that abortion is a unique act. It is sui generis, because unlike any of the other privacy rights, it involves a second life.

The Dobbs decision states on page 66,

"The Solicitor General suggests that overruling those decisions would "threaten the Court's precedents holding that the Due Process Clause protects other rights." Brief for United States 26 (citing Obergefell, 576 U. S. 644; LawxADrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, "[a]bortion is a unique act" bexADcause it terminates "life or potential life." 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is "inherently difxADferent from marital intimacy," "marriage," or "procreaxADtion"). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision conxADcerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Justice Kavanaugh, in his concurring opinion, returned to this point, saying on page 10,

"First is the question of how this decision will affect other precedents involving issues such as contraception and marxADriage--in particular, the decisions in Griswold v. ConnectixADcut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and ObergexADfell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overxADruling of those precedents, and does not threaten or cast doubt on those precedents."

The propensity of the other side to revert to this argument is consistent with their pretense that the unborn child does not even exist. The majority in Dobbs picks up on this when they say,

"The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States' interxADest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imxADperil those other rights, but the dissent's analogy is objecxADtionable for a more important reason: what it reveals about the dissent's views on the protection of what Roe called "poxADtential life." The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a "poxADtential life," but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a "potential life" as a matter of any signifixADcance.

"That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State's interest in protecting prenatal life." (p. 37-38)

I hope this is helpful to you as discussions continue about the Dobbs decision.

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