Griswold Isn't As Big An Obstacle To Overturning Roe As The Left Keeps Telling Itself
Go ahead, call me a concern troll.
Driving around southwest Connecticut this past Saturday afternoon on errands with Boo, I saw one of the many national protests held for abortion rights.
For those not familiar with my work on my previous platform, Quora, I made it pretty clear that I consider myself “demilitarized” on abortion, though “techno-utopian” is more accurate if you want to get specific about it. I started out as a pro-lifer, and evolved somewhat as I became a progressive, but my personal beliefs never really changed despite abandoning Catholicism for agnostic Zen Buddhism1. At the end of the day, I just don’t see any point pushing for abortion bans or other pro-life legislation, and I’d rather push for the sort of society and political system that can eventually evolve towards a technological and social-welfare solution to the problem of unplanned pregnancy impinging on women’s personal autonomy. I don’t care for all the moralizing on either side, and I consider the whole issue a tragic wrinkle in our national politics and in my aforementioned quest to see those politics become better.
With all that throat-clearing out of the way, what struck me while my Hyundai was trundling along in the very state that birthed the Griswold v. Connecticut decision which set the stage for Roe, was that most of the recent liberal takes I’ve seen about how Griswold poses some insurmountable obstacle to overturning Roe… are just plain dumb. I mean, okay, it’s great wishcasting, and liberals have been telling themselves this song-and-dance ever since they won Roe, and it seems pretty ironclad on face value, but it doesn’t seem like anyone on the left has really tried to make a run at steelmanning this position, nor did they expect there to ever arise a political right bold enough to be willing to go with some of the more destabilizing options on Griswold.
My main thrust is this: while Griswold does indeed hinge the popular right to use contraception on the same privacy grounds as Roe does the controversial right to abortion, overturning Griswold in order to get at Roe doesn’t inherently require doing something unpopular on contraception — or at least, the political facts on the ground have changed in the last 60 years such that things which would have been unpopular at the time are now mostly just “awkward”2. The Court could, for instance, toss contraception back to the states just as it putatively plans to do on abortion. It could declare that the real problem with Connecticut’s law in Griswold was that it banned the use of contraception, rather than the sale or possession, as we do with drugs and other laws on public morals. The conservatives don’t have to resort to the sort of ad-hoc, closeted-Christianist special moral pleading that the liberals already suspect motivates them, in order to get their way here. And regardless of what they do, just like with abortion itself, contraception isn’t just going to disappear from blue- and purple-state pharmacy shelves.
Indeed, the conservatives could rest it all on what’s actually a pretty solid alternative legal theory to Roe’s: that although the 4th Amendment’s “penumbra” does extend a generalized right to privacy against unwarranted government intrusion (read: without a 4A-compliant warrant), it doesn’t itself establish any underlying right to any particular activity the government might intrude upon.
The context and import of abortion and women’s rights to liberals tends to cloud their thinking here (for good reason!) so let’s use another example. Let’s say I’m smoking PCP in my totally-private living room — window blinds down, no neighbors to detect the smell, etc. Absent a warrant obtained via some external cause like my drug dealer ratting me out, I’ve got a pretty rock-solid right to not have the government bash down my door, even though I’m doing something they think is pretty bad. But it’s still insane to say I have a fundamental right to smoke PCP! Same goes if my girlfriend and I plot to sell nuclear secrets to China from our bedroom: treason is the only crime the Constitution itself defines, and I absolutely don’t have any fundamental right to commit it, but I do have the right to not have the police barging into my bedroom absent probable cause.
Fair disclosure here: I personally happen to think these are roughly the grounds on which Roe was mistakenly decided. So do a lot of smart conservatives, though; it’s simply not the thing about abortion jurisprudence that matters the most to them, which is why they don’t talk about it in terms liberals recognize3. But it’s a clearly defensible constitutional theory of rights. And while the examples of PCP and conspiracy to commit treason are admittedly more clear-cut than the state’s right to regulate abortion, nothing about stare decisis requires the Court’s conservatives invent a whole new jurisprudence of fetal personhood in Roe’s place overnight just to give liberals a predictable new target for their white-hot outrage. The Court can, and has before on other issues, just put it to the states and let the issue of fundamental abortion rights/fetal personhood ripen a bit more (while the broader outrage cools) before it starts sorting out the new mess4.
There’s even a kind of farcical consolation in all this: this putative alternative theory would still protect Roe’s original ruling of a woman’s right to privacy against the government intruding on her “gynecological appointment” with her doctor, it just wouldn’t say she had any fundamental right to have an abortion within said appointment. State governments are already sophisticated enough to figure out that this just means banning abortion doctors and the sale of abortion equipment — surgical tools, abortion pills, etc. — and perhaps monitor their medical waste. Were I a Trumpist, I honestly couldn’t think of a better way to troll and infuriate pro-choicers, and I’m not even trying here.
I’m truly not trying to ruin anyone’s day here, and in classic concern-troll fashion, I’d like to declare that I’m just “sounding the alarm”. Frankly, both sides should at least appreciate hearing from someone who’s emotionally detached enough from the proceedings to not indulge theirself in either side’s preferred fairytales here. I will note, however, that I’m not trying to predict the actual outcome of the next year or so in Supreme Court abortion politics. Said outcome could quite easily be more extreme in either direction: I could see one of the more levelheaded conservative justices joining Roberts in backing away from the ledge and overturning some or all of the Texas law, and I could also see the other 5 conservatives just overruling Roberts and letting Texas off scot-free Dred Scott-style5, to be rebuked by whatever some later Court’s liberals manage to muster, if they ever do.
That said, I think if Roberts tries to do his usual sanewashing baby-splitting on this one, this is a roadmap for one potential set of ways he could start on the path of doing it.
At the end of the day, the most likely outcome I see follows one of the big tenets here at the Discourse: “current trends continue”. The Court has spent decades muddling through on abortion rights, inventing ever-more-complex gradations and just glaring exceptions as a generational right-wing backlash movement politicized and then won the judiciary in order to carve up a precedent it hated. The optimist in me hopes that a new jurisprudence could replace the bad old one and prevent an equally-politicized backlash, but the realist in me suspects that the Court’s conservatives already recognize the danger of such a backlash, and will keep muddling along until Roe is guacamole rather than ever explicitly overturn it6.
Turns out religion really didn’t have all that much to do with my original stance.
If anything, the same smart center-lefties who lament the evils of an unbalanced Senate, the filibuster, gerrymandering, voter ID laws, and more, ought to be giddy at the prospect of a national wave of state backlash movements to re-legalize contraception.
I assure you, there are enough rural and exurban non-college Whites who would hop off the Trump Train in a fetal heartbeat to ensure they can buy condoms at the CVS, that it would easily put Democrats within farting distance of a filibuster-proof majority.
For future reference, if you ever hear a pro-lifer carping about how absurd “emanations and penumbras” are, this is what they’re alluding to, they’re just not bothering to spell it all out for you.
For states that already have personhood amendments, this actually does give a properly constitutional ban on abortion. The Court could simply rule that the Constitution is too silent on both personhood and the right to an abortion as it currently stands, to have any authority to regulate the practice.
As in a, “Fuck it, fuck you guys, let’s do this shit” sort of ruling.
For the record, if some day I’m sitting there in my rocking chair in my 60’s, and the liberals themselves are the ones to overturn Roe so they can wipe away this current era of muddled and bad abortion precedents, I’m going to laugh my old ass off.