Determinants of Health Equalities Feminism Human Rights My body My choice Tyler Cary

Roe v. Wade and the Right to Privacy in the US Constitution

by: Tyler Cary

Like many people around the world, I am still reeling in shock from the decision by the US Supreme Court (SCOTUS) to rule that the right of people who can become pregnant to get an abortion was struck down. In the majority opinions expressed by Alito and Thomas, they both stated that the Roe v. Wade ruling was “was egregiously wrong from the start. Its reasoning was exceptionally weak.” The majority opinion also expressed that “We hold that Roe and Casey must be overruled.” The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Another sentiment expressed by the majority opinion was “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work”.

The language used in the majority opinion from SCOTUS sets a dangerous level of precedence from a highly partisan group of judges. Currently, SCOTUS is presided by a 5-4 majority of right- wing judges. They are ensured to win any case they decide to rule upon as long as they refrain from using their rather theocratic beliefs to justify the ruling. This is because the 1st Amendment begins with the establishment clause. This clause states, “Congress shall make no law respecting the establishment of religion.” They must refrain from using language that hints at their US evangelical beliefs. SCOTUS is using the fact that specific rights gained by precedence set from previous cases are not explicitly stated in the constitution. Essentially, it’s a line of logic that uses constitutional fundamentalist logic—only interpreting rulings by the exact language set out over 200 years ago—to hide their evangelical, fundamentalist beliefs in a manner that is extremely difficult to challenge.

Two early constitutional challenges established the constitution as the “supreme law of the land”. James Madison ruled both cases. The first case was Marbury v. Madison when John Adams attempted to pack the courts with his appointees before Thomas Jefferson assumed the role of president. Marbury established that the constitution and SCOTUS had the authority to overrule the legislative branch. The second case was McCulloch v. Maryland over the establishment of the Second National Bank. This case set a precedence that the constitution and SCOTUS interpretations superseded state’s rights because states were nearly equivalent to individual, sovereign nations until this ruling. Together, they place the constitution and how SCOTUS interprets it as the supreme arbiter of federal law.

The right to an abortion was considered to be protected by the 14th Amendment. The cases of Obergefell v. Hodges allowed same-sex marriage. Lawrence v. Texas allowed same-sex (or other couples who identify as LGBTQI+) couples to engage in private sexual acts, any sexual activity that cannot lead to the conception of a child, or anything that can be defined as sodomy. Griswold v. Connecticut gave people the right to contraception. The same right to privacy protects these SCOTUS rulings as Obergefell. Since a highly partisan SCOTUS is choosing to rule based on what is explicitly stated in the constitution, it is necessary to point out that THERE IS NO RIGHT TO PRIVACY THAT IS EXPLICITLY STATED IN THE CONSTITUTION.

Ge striking down of Roe vs Wade is just the opening salvo against rights in the US. Privacy will be next.

The right to privacy was interpreted as an aggregation of the language in the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments. When the right to privacy was ruled on as implied by the constitution, those SCOTUS judges stated that the entire constitution must be taken into consideration to gain a Constitution. Since SCOTUS is interpreting from a guaranteed 5-4 vote win, they can apply the same fundamentalist language to any ruling that they consider to be obscure enough to strike down because it isn’t explicitly mentioned in the constitution. Many rights are protected by vague language, and they can ultimately strike down any and all rights to privacy, allowing the federal government to invade the private lives of any citizen on a whim.

Everyone in the US or those living abroad who can vote in US elections should take these decisions very seriously. It should be the duty of everyone to ensure that they are as informed as possible so they can exercise their power in the 2022 midterm elections and again during the 2024 presidential election cycle. We must hope that the actions of a highly partisan–and let’s face it, theocracy–Supreme Court will anger and mobilise those who don’t regularly engage in politics or voting at the polling stations. There is no time right now to sit back and watch what is happening; it is time to be angry and use that anger to ensure that Congress and the Senate have the power to pass laws that will protect the rights of US citizens. If you know anyone who votes in the US, encourage them to become informed and vote. I am adding links to the end of this article which not only highlight the importance of being well informed before voting but also show a fair amount of information that is highly relevant to the topic.

Read more on the Right to Privacy 

Read more on Populism and the Danger of an Uninformed Voting Population 

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