‘Victimless rights’ at risk? How the court’s Roe ruling will affect your privacy

Following the Supreme Court’s decision overturning Roe v. Wade and empowering states to abolish, regulate or allow the right of pregnant women to choose abortion, many abortion rights advocates have expressed fear that other relatively new rights — what might be termed “victimless rights” — will now be in danger. These endangered rights include birth control, gay marriage and even interracial marriage.

It is clear that opponents of these rights — perhaps including Justice Clarence Thomas, who indicated a possible interest in overturning other privacy precedents — may seek to have them overruled based on the “logic” of the court’s majority overturning Roe. Yet it is questionable whether they would succeed. They certainly shouldn’t. 

It is true that all of these rights are based, at least in part, on the same constitutionally unenumerated right of privacy on which Roe depended, but there is a considerable difference between them — a difference that should give the justices considerable pause before they slide down a slippery slope toward diminishing the fundamental right to be “let alone,” which Louis Brandeis characterized as our “most important” liberty some two decades before he became a Supreme Court justice in 1916.

The difference is that the right to use birth control or to marry whomever one loves does not clash with any other rights. No one is hurt when a couple seeks to prevent conception, when a man and woman of different races choose to marry, or when men and women have sex with someone of their own gender. These acts are simply nobody else’s business. Their right to be let alone does not conflict with any other legitimate right or interest, even for those who might be morally or religiously opposed to such alleged “sins” committed by those who don’t believe they are sinful.

Abortion is different, at least to those who regard the fetus as human life deserving of protection by the state. Even for many who do not hold such views (and I count myself among them), the act of aborting a fetus, particularly one that is several months old, is not like removing an appendix or tonsils. 

A fetus is a “something,” not a “nothing,” even to those of us who believe a woman has the right not to carry it to term and birth it. An infected appendix, in contrast, is a nothing, not worthy of a moment’s reflection; no one ever regretted or had moral qualms about removing an appendix. Yet some advocates of abortion have equated a fetus to an infected appendix. Florynce Kennedy, a pioneer in litigating abortion cases (and a friend of mine, until her death in 2000), declared during the runup to the court’s Roe decision in 1973: “There is no need for any legislation on abortion, just as there is no need for legislation on an appendectomy.”

This analogy, and others like it, are common among abortion advocates — but it does not reflect the view of most Americans. Nor does it reflect the views of most justices who have voted in favor of a woman’s right to choose to abort a fetus at some point in a pregnancy. It is a mistake, both tactically and morally, to ignore the difference between a fetus and an appendix. 

The case for abortion must take into account the widespread belief that ending the life of a fetus, especially after a few months, involves a clash of rights and interests — a clash that should be resolved in favor of the pregnant woman, in my view, but one that is not without countervailing rights and interests. Similarly, failure to recognize the difference between abortion and gay rights will increase the likelihood that those who want to overrule the latter will gain strength from the false comparison. 

The extremes on both sides — those who believe that a fetus is no different than a live human being, and those who believe that it is no different than an appendix — seem to agree that with Roe now overturned, it is only logical that other privacy rights, such as those involving contraception or marriage, will be overruled as well. 

Both are wrong. 

Courts understandably are more reluctant to overrule rights that in no way impinge on other rights than they are to act if they believe that by overruling one alleged right (abortion) they may be vindicating another (the so-called right to life). Accordingly, the case for overruling conception and marriage rights is even weaker than the court majority’s weak (at least in my view) case for overruling the half-century-old precedent of Roe.

Indeed, despite the false or exaggerated claims by both sides of the abortion-rights divide, the court’s ruling in this case will not by itself make abortion illegal nationwide. It simply states, in effect, that there is no constitutional or federal right to have an abortion — at least until Congress acts to legislate such a right, a prospect which seems unlikely at present. Thus, the ruling’s effect will be to return that decision to each of the 50 states; some undoubtedly will (or already do) restrict or ban it, and some undoubtedly will seek to protect or expand that right. 

My prediction, therefore, is that the court’s overturning of Roe will not necessarily result in the overruling of privacy rights that pose no conflict with other rights or legitimate interests. Only the false “logic” of the extremes on both sides — those who believe that a fetus is a person, and those who believe it is no more significant than an appendix —would compel the same result in these very different cases.

Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” He is also the host of The Dershow on Rumble. Follow him on Twitter @AlanDersh.