What Roe could take down with it

But Griswold was not the Court’s first word on the scope of “liberty” under the Fourteenth Amendment’s due-process clause, which protects individuals from arbitrary governmental deprivations of “life, liberty or property” without articulating with any precision what the word liberty actually means. In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating. A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.

Consider the 1923 case Meyer v. Nebraska, in which the Court struck down a law criminalizing the teaching of German in private schools. “The obvious purpose of this statute,” the Court wrote, “was that the English language should be and become the mother tongue of all children reared in this state.” Although its enactment “comes reasonably within the police power of the state,” the Court found that the law ”unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment”—the precise grounding of the now-precarious individual right to decide whether to carry a fetus to term. Two years later, in Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, the Court struck down an Oregon criminal law forcing parents to send their children to public school. “The manifest purpose” of the law, the Court noted, “is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade.” Citing Meyer, the Court ruled, “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.”…

Thus, to say that Roe is a one-off constitutional blunder, built on a flimsy foundation, while other rights are grounded in concrete, is a myth—and a dangerous one. Nothing in the Constitution says anything to specifically protect couples’ ability to choose to have sex, use contraception, get married, decide how to educate their children, refuse bodily inspection or medical treatments, and, yes, terminate a pregnancy. From a legal perspective, if Roe falls, it’s hard to see what else will still stand.