What the End of Roe v. Wade Could Mean for the Right to Privacy

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On Wednesday, December 1, 2021, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the first direct challenge to Roe v. Wade heard in nearly 50 years. Since 1973, the Court has consistently recognized a constitutional right to abortion as a matter of privacy before the point that a fetus can survive on its own (the viability standard). But in recent years, states have passed laws that dramatically restrict when and how pregnant people can access abortion.

As the balance of the Supreme Court shifted under former President Trump, states increasingly passed laws that intentionally violated Roe in an effort to reopen the issue. For instance, in 2018, Mississippi prohibited abortions after 15 weeks of pregnancy despite scientific consensus that viability occurs at 22-24 weeks. Challenges to that law eventually became Dobbs. Earlier this year the Court allowed an even more restrictive law to go into effect in Texas, outlawing abortions after 6 weeks of pregnancy.

Faith traditions approach questions of healthcare, including reproductive care, differently. Patients should be free to make decisions based on their own beliefs and circumstances, not the religious views of their doctor or state legislators. But pre-viability bans like those adopted by Texas and Mississippi do just that, placing abortion out of reach for millions of people of all faiths and of none. Low-income people, people of color, those in rural areas, trans and nonbinary people, and other members of underserved communities have felt the effects these restrictions most acutely.

In oral arguments on December 1st, Scott Stewart, representing Mississippi, noted that the viability standard doesn’t appear in the Constitution and suggested abortion restrictions should therefore be left to the states. But, Justice Sonia Sotomayor responded, “there’s so much that’s not in the Constitution” that is still a matter of federal law.

So where does this framework for abortion access as a constitutional right – and other protections for personal activity that touch on religious and moral beliefs – come from?

Where’s the Right to Privacy in the Constitution?

As early as 1891, the Supreme Court recognized the right to bodily autonomy, writing that “no right is held more sacred…than the right of every individual to the possession and control of his own person, free from all restraint or interference of others.” In the first half of the 20th century the justices went on to develop this line of thinking through cases involving family matters like Pierce v. Society of Sisters, recognizing parents’ rights to send their children to the school of their choosing including religious education.

The contours of the right to privacy grew through judicial interpretation of the broader principles undergirding the Constitution. By 1965, as access to over-the-counter contraception increased and states sought to intervene, the Court linked personal privacy to the “penumbras and emanations” of the Bill of Rights. Griswold v. Connecticut, followed by Eisenstadt v. Baird in 1972, held that the use of contraception goes to the heart of personal decision-making. Justice William Brennan, writing for the majority, stated plainly that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The justices went on to built on the topics falling within the zone of privacy to include abortion (Roe, Planned Parenthood v. Casey), consensual sexual activity (Lawrence v. Texas), marriage (Obergefell v. Hodges), and more. If the Supreme Court strikes down Roe next spring, decisions that built upon this precedent could be in jeopardy as well. 

Religious Freedom and the Right to Privacy

As time has gone on, the issues recognized by the Supreme Court to be among the most personal have also been highly politicized. From reproductive healthcare to LGBTQ+ equality, matters of identity and family formation remain mainstays of the so-called “culture wars.” And for Americans across the political spectrum, our views are often informed by our religious teachings and moral convictions.  

The Constitution lays out a framework to provide space for diverse perspectives, with the basic guarantee that all people are deserving of equal treatment under the law. The 1st Amendment protects the right to believe as we choose, without fear of discrimination or harm, under the Free Exercise Clause. The Establishment Clause outlines the role of the government in protecting personal belief by prohibiting the establishment of an official religion, including passage of laws that impose one religious viewpoint on all.

When zealously guarded, religious freedom and the right to privacy work in tandem to ensure that all Americans may make deeply personal decisions based on our own beliefs and values. In an amicus brief filed alongside key partners in preserving church-state separation, Interfaith Alliance highlighted the role of the Court in ensuring that lawmakers do not substitute their own beliefs for those of their constituents.

Justice Sotomayor raised this concern at oral argument in Dobbs, emphasizing the spectrum of religious thought regarding abortion. She challenged Mississippi’s critique of Roe as granting “the right to end a human life,” asking, “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time….So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Reproductive Freedom is a Matter of Religious Freedom

A final decision is not expected from the Supreme Court in Dobbs v. Jackson Women’s Health Organization until Spring 2022, but Interfaith Alliance continues to champion an inclusive vision of religious freedom that protects people of all faiths and none. Our commitment to this basic right demands that we speak out against threats to freedom of belief, no matter the circumstance. During the summer of 2021, the Interfaith Alliance Board of Directors engaged in a rigorous and thoughtful dialogue around the urgent threat to reproductive freedom. In recognition of our theological differences and in keeping with our commitment to true religious freedom, the Board adopted its first ever Interfaith Alliance Statement of Policy on Religious Freedom rooted in the shared understanding that all of us should be free to make decisions based on our own beliefs and circumstances – not the religious views of our bosses, doctors, or elected officials.    

Learn more about Dobbs v. Jackson Women’s Health Organization and read the full amicus brief. We undertook this effort in partnership with Americans United for the Separation of Church and State, American Humanists Association, and Bend the Arc Jewish Action.