Beyond Abortion: Roe v. Wade and the Right to Privacy #womenrights

January 24, 2013

January 22, 2013 marks the 40th anniversary of the Roe v. Wadedecision. All month, we’ll be running posts examining various aspects of this landmark ruling. If you’d like to contribute, let us know!

Today’s guest post is by Emily Martin, Vice-President and General CounselNational Women’s Law Center; and Cortelyou Kenney, a Fellow at the Center.

What most people know about Roe v. Wade is that it is the landmark decision establishing a woman’s right to end a pregnancy. What is less well known is that the decision strengthened the legal foundation on which other protections are based as well. In Roe, the Supreme Court solidified the “right to privacy” as part of the liberty protections under the Fifth and Fourteenth Amendments. This protection of liberty and privacy is responsible for certain fundamental guarantees—including the rights to obtain birth control and to procreate, to marry, to develop family relationships, to rear one’s children, and to create intimate relationships. While the concept of a constitutional “right to privacy” predates RoeRoe is an important affirmation of and foundation for these rights—rights that could be threatened if it were overturned.

Roe reaffirmed the right to obtain birth control and to procreate, and subsequent cases rely on Roe to bolster this right. For example, a 1977 case relied on Roe to invalidate a ban on distribution of nonprescription birth control to adults by anyone other than a pharmacist and a blanket prohibition on sales or distribution of contraceptives to individuals under 16.


Roe also helped solidify the right to marry first acknowledged by Loving v. Virginia, which found laws against interracial marriage unconstitutional. For example, a 1978 decision upheld the right of single parents obligated to pay child support to marry without first obtaining the permission of a judge, based in part onRoe.

The Supreme Court has also relied on Roe to hold that the state cannot interfere in family life. For example,the Court overturned a zoning ordinance that blocked a grandmother from living with her grandson, explaining that Roe “acknowledged a ‘private realm of family life which the state cannot enter.’”

The right of privacy also protects parents’ ability to raise their children as they see fit. The Supreme Court has relied on Roe as support for the proposition that “[a] person’s decision whether to bear a child and a parent’s decision concerning the manner in which his child is to be educated may fairly be characterized as exercises of familial rights and responsibilities” protected by the Constitution.

Finally, Roe profoundly influenced the right to form intimate relationships and the corresponding right for adults, including gays and lesbians, to engage in consensual sexual relations in private. These rights were first recognized in a 2003 case that proclaimed “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed . . . the protection of liberty . . . has a substantive dimension of fundamental significance in defining the rights of the person,” such as autonomy in intimate relationships.

Were Roe overturned, it could have ripple effects well beyond the right to an abortion. As privacy cases have recognized, “our laws and tradition afford constitutional protection to personal decisions relating,” among other things, “to marriage, procreation, contraception, family relationships, child rearing” and intimacy. The right to privacy, strengthened by Roe, supports each of these. Overturning Roe could thus erode the ability of individuals to make highly personal decisions free from intrusive government regulations.


Roe At 39: Celebrate Roe by Taking Action to Ensure Abortion Is Both Legal and Accessible

January 22, 2012, marks the 39th anniversary of Roe v. Wade, the US Supreme Court decision that recognized a woman’s constitutional right to have an abortion, if she so chooses. Reflecting on the anniversary of this landmark case, I am reminded of an interview with a woman from Florida who struggled to pay out-of-pocket for her abortion. When asked what she thought about the fact that Medicaid would not cover her care she said, “I wish women had a right [to Medicaid coverage of abortion]…. I think women should have that option…. There’s a lot of things to having a right to choose.”

One obstacle standing in the way of women’s right to have an abortion is the Hyde Amendment. Passed in 1976, the Hyde Amendment prohibits the use of federal Medicaid funding for abortion except when a woman is pregnant as a result of rape or incest, or when her pregnancy endangers her life. States have the option of using their own funds to cover abortion in broader circumstances, but few do.

Ibis Reproductive Health has conducted several research studies that evaluate how restrictions on public funding for abortion affect women. Our researchshows that women consistently encounter problems enrolling in Medicaid, trying to use Medicaid to cover qualifying abortion care, and finding a local health care provider that accepts Medicaid. We have also found that women have difficulty accessing accurate information about Medicaid coverage of abortion and that Medicaid staff frequently discourage women from seeking abortion coverage. Because of these difficulties, women are forced to raise their own money for care. They borrow money from friends and family, take out payday loans, delay bill payments, pawn jewelry, and take other drastic measures. This scramble to obtain funding can lead to delays in obtaining timely care or prevent women from obtaining an abortion altogether.

The fight to restore public funding for abortion has been going on for over 35 years. In that time, women’s health advocates and abortion providers have endured an onslaught of policies aimed at restricting women’s abilities to access abortion. But they have also become adept at removing some of the obstacles in women’s paths. Our research shows that through a range of advocacy, policy, and practice-based strategies, women’s health advocates and abortion providers have developed a number of ways to ensure that eligible women secure timely access to Medicaid coverage of abortion.

We compiled these strategies in the Take Action series – a set of guides that outline actions thatadvocates and abortion providers can take to help expand women’s access to Medicaid coverage of abortion. The guides also highlight the real-life experiences of women and abortion providers trying to navigate the Medicaid system. In the coming months, Ibis will release two additional Take Action guides for women and policymakers.

It is our hope that documentation of the devastating impact of the Hyde Amendment, as well as evidenced-based strategies for improving the Medicaid system from the ground up, will help ensure that abortion is not only legal, but accessible to all women regardless of their income.


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