No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That is the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  That sentence is where a constitutional right to abortion is derived. A long line of Supreme Court cases has interpreted this language to include fundamental rights.  The reasoning is that “due process of law” protects not just procedural rights (think criminal rights), but also fundamental rights.  Fundamental rights refers to those rights specifically enumerated in the constitution (free speech, religion etc.) but also those rights which are widely accepted; exist independently of the constitution and are derived from our very nature as human beings.

In Roe v. Wade, the SCOTUS found that the substantive due process clause guarantees and protects a right to privacy.  Within that right to privacy is a woman’s right to terminate a pregnancy.  Roe recognized that women have autonomy and privacy in their own bodies.  But the right to privacy was never limited to the question of reproductive rights.  Roe recognized, for the first time that the U.S. Constitution protects a fundamental right to privacy for everyone.

It is a near certainty now that Roe v. Wade will be struck down in the next few months by a conservative majority that is no longer even trying to hide its politics. The day the opinion is released abortion will become immediately illegal in nearly half the country.  In that same instant a constitutional right that women and doctors have relied upon for almost 50 years will evaporate. Women will be rendered second class citizens.

That is not the end of story though.  The consequences reach beyond the abortion debate.  When Roe is overturned the broader right to privacy, first recognized in Roe, is weakened, indeed, the foundation will crumble.  In the 50 years since Roe the fundamental right to privacy has been acknowledged, interpreted, and applied as the legal and philosophical basis for the recognition of additional rights that are not already enumerated in the Constitution.  Roe’s right to privacy is the trunk of a family tree.  Roe’s progeny (those later decision which rely directly upon it for legal authority) grew into branches that extended and stretched in multiple directions.  The most well-known branch, of course, deals with abortion rights.  Roe’s right to privacy also grew into Lawrence v. Texas.  In that case, SCOTUS held that criminalizing homosexual conduct was unconstitutional.  SCOTUS in 2003 established, for the first time, that homosexuality could not be criminalized because private sexual conduct between consenting adults is protected by the right to privacy.

Dobbs will take a chainsaw to the abortion branch and in so doing harm the entire tree.  SCOTUS cannot overturn Roe without also irreparably damaging the right to privacy.  From Roe came the right to privacy and the right to abortion.  These two rights are so thoroughly intertwined that elimination of one profoundly harms the other. 

Lawrence v. Texas and its progeny will, at best, be left weakened, and, at worst, entirely without a legal/constitutional foundation. For a time, I believed the culture wars, at least with respect to the LGBTQ+ community, were winding down.  That was naivety and ignorance on my part.  The right’s culture war against the LGBTQ+ community never really ended.  In 2022 it has been, once again, pushed to the forefront by opportunistic, power-seeking politicians.  Republican legislatures across the country are passing laws that dehumanize and delegitimize (under the law) LGBTQ+.  Many of the laws squarely aim at marginalizing transgender youth (yes, Republicans are taking aim at children).

Roe’s right to privacy provided part of the constitutional foundation for Lawrence.  Lawrence, in turn, has its own progeny.  Specifically, there is a direct line from Lawrence to Obergefell v. Hodges.  In Obergefell, SCOTUS recognized same-sex couples had a fundamental right to marry. 

To recap – Roe is the foundation of Lawrence.  Lawrence (and Roe) is the foundation for Obergefell.  Do you see the dominoes?  Without Roe the right to privacy has been dealt a mortal wound.  Without the right to privacy is there still a constitutionally protected right to private consensual sexual conduct?  If homosexuality is not protected from criminalization, can there still be a constitutional right to marry?    

In 2022 it is not hard to imagine that cynical power-seeking conservatives would seek to turn back the clock on LGBTQ+ rights.  It is not inconceivable that states like Texas could revive long anti-sodomy laws in order to criminalize the LGBQ+. 

Maybe, this is alarmist.  But four years ago, I would have told you Roe would never really be struck down.  Maybe death by a thousand cuts, but never fully overturned.  I would have been wrong.  The right to privacy will be diminished or destroyed and with it other fundamental rights that people have come to rely on.  Anyone who believes that women should control their own bodies, and that LGBTQ+ community should have the same rights as anyone else should be deeply concerned. 

*I am not a constitutional scholar.  The constitutional issues are complex and multifaceted.  This essay, admittedly, only touches on the surface, there is more nuance than I have the time or energy to address.  My intent here is to highlight, the broader devastation that could be wrought by overturning Roe.