The real story of Roe’s legacy is only partly about abortion. The decision also belongs to a longer history of what we mean when we talk about privacy and how that notion has (and sometimes has not) shaped our legal rights in areas well beyond this single issue.
The introduction of this seemingly broad right sparked an ongoing debate among Americans across the ideological spectrum: What does the right to privacy constitute — to whom does it belong and what does it protect?
After the Supreme Court issued its decision, social movements working on issues unrelated to abortion immediately moved to wield Roe as a weapon. It may seem puzzling that people wanted to tie a cause to Roe. After all, abortion was extraordinarily controversial. And almost immediately, most constitutional scholars admitted that Roe was an odd (and perhaps lousy) opinion.
But poorly constructed or not, Roe recognized a right to privacy that seemed much broader than anything the judiciary had identified before — broad and expansive enough to trump crucial state interests in protecting life and encompass a woman’s right, with her physician, to terminate a pregnancy. The Court’s opinion did not go far enough for many activists, but this right to privacy seemed to touch on ideas about control over one’s body, one’s decisions and one’s life.
In the 1970s, activists working with the American Civil Liberties Union (ACLU) and what was then called the National Gay Task Force argued that Roe had recognized a right to choose that covered not just reproduction but also sexuality. The ACLU’s Sexual Privacy Project pointed to Roe in defending gay and lesbian people, women living with boyfriends, adult film stars, sex workers and people arrested for violating laws against cross-dressing.
But sexuality wasn’t the only lens through which people understood the decision. Advocates for the mentally ill envisioned Roe and the right to choose as bolstering their own cause. At a time when state institutions were closing at a record rate, former patients suggested the right to privacy protected the freedom of thought. Roe, as these activists saw it, protected people from forced drugging or electroshock therapy.
Because of the right to privacy at the heart of the decision, politicians and activists with different ideological views also used Roe in the fight for data privacy, consumer rights and alternative medicine. Not long after President Richard Nixon declared a war on cancer, patients and far-right activists alike pointed to Roe in contending that a person had the right to choose the course of his or her own medical treatment. The medical establishment, by contrast, used Roe to push back against unproven remedies, suggesting the Court had really recognized doctors’ rights to practice medicine.
In short, in the 1970s, a variety of movements explored the untapped potential of the right to privacy. Activists argued that privacy involved choice, control and self-determination, not just freedom from the government. These ideas went well beyond anything in the original Roe decision.
So what happened? Why is everyone marking Roe’s 45th anniversary talking about abortion and nothing else?
In part, because the coalitions working to redefine the right to privacy often collapsed. Feminists and civil libertarians sometimes clashed about what a right to choose would mean in the context of sex, especially when it came to the line between coercion and consent. Those seeking more control over personal data disagreed about when the government could justify the gathering or sharing of sensitive information.
Moreover, as time progressed, the abortion debate started to catch up with people who tried to turn Roe into something more. Before the 1980s, it was easy to find people with various positions on abortion in both major political parties. But then Ronald Reagan made the Republican Party into what backers called the party of life, and feminists gained more influence in Democratic circles. Increasingly, Roe (and its right to privacy) appealed only to self-identified progressives.
The narrowed understanding of Roe was also the product of a particular political strategy. Antiabortion rights advocates and Republicans understood the importance of public opinion. If Roe was a symbol of a broad right to privacy, liked and enjoyed by many Americans, abortion foes would have a harder time convincing them abortion should be banned or restricted.
These abortion opponents shrewdly recognized that academics had long questioned the reasoning of the Roe decision and sensed an opening. If they could transform Roe from a decision associated with a broad, popular right into one associated with inappropriate judicial activism, it would be much easier to get it overturned.
Outside of the ivory tower, anxieties about Roe as an example of judicial activism had rarely resonated in the 1970s, but antiabortion advocates set out to change that. By the end of the 1980s, abortion foes and Republican politicians routinely pointed to Roe as a symbol of the problems with the judiciary. Republicans like Reagan saw these attacks as a way to gain support from social conservatives, and once antiabortion activists accepted that a constitutional amendment protecting fetal rights was unlikely, they saw attacks on the judiciary as the best way to restrict abortion.
This effort at least partly paid off. In 2018, when anyone mentions Roe v. Wade, that person is almost certainly talking about abortion or the Supreme Court. The right to privacy and everything it could mean is nowhere to be seen.
Roe’s legacy reminds us that the Supreme Court often does not have the final word on what its decisions mean. People who invoked Roe did not feel limited by what the justices wrote in 1973. Some of these reinterpretations have had a longer cultural life than the Court’s original opinion. The same will hold true for the Court’s next blockbuster decision.
The meaning of the right to privacy is likewise up for grabs. Americans debate how companies like Google and Facebook use our data and how businesses and the government can prevent data breaches like the one at Equifax. Choice and control in intimate life are on the front page again as the Supreme Court considers how to balance the rights of gay and lesbian people against the objections of religious believers who refuse to serve same-sex couples.
Roe’s legacy also tells us the right to privacy could have been both broader and different from what we now know. Not long after the Court announced its decision, Americans talking about privacy asked for financial support from the government, not just liberty from the state. Others demanding privacy talked not only about what went on behind closed doors but also about the tolerance and respect accorded to people’s relationships in public. The story of Roe is a reminder of how we have rethought the right to privacy before — and that we could do so again.