The Supreme Court has terminated Roe v. Wade. Many of the most important consequences of aborting the constitutional right to abortion are obvious, but I have also been thinking about other effects.
There is a glimmer of good news in the Supreme Court case that overruled Roe v. Wade. The opinion in Dobbs v. Jackson’s Women’s Health Organization averred that there was no right to abortion specified in the Constitution, but it also held that access to abortion was an issue for the states to decide. I had little doubt that the Court would kill Roe, but I was concerned that in doing so, the majority would suggest that a fetus was a human being. This, of course, is a common view. For example, in an opinion piece in the New York Times published on the day Roe was overruled, Karen Swallow Prior, a research professor at Southeastern Baptist Theological Seminary, wrote that if you believe as she does “that abortion unjustly ends the life of a being that is fully human [Emphasis added], a life that exists independently of the will of the mother, is self-organizing and unique, developing yet complete in itself, then you will understand Roe not as a ruling that liberates but as one that dehumanizes—first the fetus, then the rest of us.”
People who have beliefs like Prior’s will seek to have states that do not already have laws making abortion criminal to pass them. They will not have success everywhere. I doubt that will be the end of their efforts. When they lose in the state legislatures, they will turn to the courts hoping to get rulings outside the democratic process that a fetus is a human being. If courts ever conclude that, then an abortion would be depriving a life without due process of law. Abortion would be illegal everywhere.
But right now, there is that small bit of good news that the Dobbs Court held that abortion is an issue for the states.
A justifiable concern is that with Roe overruled, other Supreme Court precedents that relied on reasoning similar to Roe’s will also fall. Clarence Thomas concurring in Dobbs said that Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015) should also be reconsidered, and there is little doubt that he would overrule them all. Alito’s opinion stressed that only abortion was at issue in Dobbs, and Kavanaugh concurring suggested that the Court should not consider other precedents. However, if the Court is consistent, these other decision, too, could be overruled. So what would that mean?
Obergefell held that there was a constitutional right to same-sex marriage. The consequences of striking it down and returning the issue to the states are obvious. Griswold held that married couples had the constitutional right to access birth control, a right that was extended to non-married couples by the Supreme Court in 1972 in Eisenstadt v. Baird. I don’t imagine that states will rush to outlaw condoms and birth control pills. At the time of Griswold, only Connecticut and Massachusetts had such laws. However, many state legislators have stated an intention to ban the morning-after pill and intrauterine devices under the theory that IUDs and the medication cause abortions. If Griswold is overruled, these laws will be constitutional because states can not only regulate abortion, they can also regulate these forms of contraception.
Lawrence is thought to hold that laws prohibiting gay sex are unconstitutional. If it is overruled, states could again criminalize this behavior. Lawrence, however, did more than that. Thomas was correct in saying that the case constitutionalized “the right to engage in private, consensual sexual acts.” Some state anti-sodomy laws made oral and anal sex illegal for all people. In these places, married people who engaged in fellatio or cunnilingus were violating the law. Even if Lawrence is overruled, states might not pass such laws again. However, the assumption is that with the fall of Roe, anti-abortion laws that were in effect before Roe and remain on the books are again operative. A similar thing could happen if Lawrence is overruled. Laws still on the books would be back in effect. Gays, and perhaps others, would be breaking the law.
This makes me think back to my childhood. I read the local newspaper of my town of 45,000 growing up, and I learned early that people were arrested for adultery, fornication, and cohabitation, and some even went to jail. I understood what murder and assault were, but I did not understand these other crimes. I asked the parents what these offenses were. I could tell that my question embarrassed them, and their explanations were vague and filled with hemming and hawing. What I did learn at the age of eight was that at least sometimes I needed a source of knowledge other than the mother and father. So, when there was an arrest for rape reported in the paper, I looked up the definition in a dictionary and I learned that rape was “unlawful carnal knowledge.” That did nothing to further my understanding.
In the local Sheboygan police reports, it seemed that people were being arrested for such offenses on a weekly basis. And, indeed, A Wall Street Journal article in 1968 reported that in 1967 in my hometown “there were thirty-five arrests for adultery, eleven for fornication, twenty-seven for lewd and lascivious cohabitation.” Elizabeth H. Pleck, in her book Not Just Roommates: Cohabitation After the Sexual Revolution, says that the local paper, the Sheboygan Press, published with pride the entire WSJ article, and the town took honor in being the cohabitation arrest capital of the United States in the 1970s. (Not Just Roommates can be found on Google books.) The cohabitation law was repealed in 1983, but it was enforced as late as 1978.
I believe that the fornication law, too, was repealed, and in any event, such laws are unconstitutional under Lawrence. I have read that the Wisconsin adultery law, although now not enforceable, is still on the books as a felony, and probably other states also retain such a law, too. If Lawrence is overruled, those laws can again be enforced. Of course, there will be nothing like full enforcement of the laws against adultery or fornication. Our court and jail systems could not handle the cases even, perhaps especially, in the South where divorce rates are higher than in much of the North.
We can, however, expect that there will be pockets around the country where the laws will sometimes be enforced. Back in the day the Sheboygan police chief said that most of the arrests for sexual offenses resulted from neighbor’s complaints. The arrests, however, also clearly comported with his personal sense of morality. Offended neighbors are still with us as are enraged spouses or ex-spouses, and in some places, they will clamor for arrests and prosecutions. And religious zealotry is certainly with us. After all, while the Bible does not mention abortion, it does condemn adultery and fornication. We can expect that some police chiefs and sheriffs will hear the call from what they think is God (as well as the call of publicity and political ambition), and they will do what they claim is His will.