Why Stop at Roe: What’s Next?

Photograph by Nathaniel St. Clair

The recently released draft of a likely Supreme Court decision overturning Roe v. Wade will further galvanize the upcoming 2022 mid-term elections, only intensifying other critical “culture wars” issues – inflation, immigrants, racial equality, voting, guns, gay/trans rights, “critical race theory” and censorship.

The draft decision will likely represent former president Donald Trump’s historical legacy revealing the importance of “court packing” in American life.  More troubling, it demonstrates just how powerful the conservative movement has been in a long-term plan to remake both the state and federal judiciary.

The Court’s likely decision raises a critical question: what other critical or landmark prior decisions could it overturn?

A quick review of some of these possible decisions suggests just how reactionary an aggressively conservative Court could be.

Tier 1 — Personal Privacy

Loving v. Virginia(1967)

The Court invalidated state laws prohibiting interracial marriage.

So, why, under state rights, shouldn’t states prohibit “unacceptable” marriages based on race or any other unacceptable factor?

Lawrence v. Texas (2003)

The Court struck down state laws that prohibited sodomy between consenting adults.

So, why – in a Christian country – should anyone have a right to engage in sodomy or other homo-erotic acts?

United States v. Windsor (2013)

The Court ruled that the federal government must provide benefits to legally married same-sex couples.

So, why, if same-sex couples are prohibited from marrying, would benefits be provided?

Obergefell v. Hodges (2015)

The Court ruled that same-sex marriage is legal in all 50 states.  However, as with the draft decision, Dobbs v. Jackson Women’s Health Organization, the Court could reverse its decision on the grounds that – based on an “originalist interpretation,” homosexuals – let alone marriage — are not mentioned in the Constitution.

Griswold v. Connecticut (1965)

Eisenstadt v. Baird (1972) 

The Court ruled that the personal right to privacy permitted married people to acquire contraceptive devices.

So, now that Roe had been overturned to protect the fetus, why should couples or individuals, married or single, have a right to the privacy or acquiring and using contraceptives?

Tier 2 – Political Practice

United States v. Nixon (1974)

The Court rules that a president cannot use executive privilege to withhold evidence from criminal trial.

So, why, in a case involving former Pres. Trump’s business practices, should he not be granted executive privilege?

Baker v. Carr (1962)

The Court ruled that states must meet a Constitutional standard for voting that doesn’t violate the Equal Protection clause of the 14th Amendment, thus instituting the notion of “one person, one vote.”

So, why not reconceive voting as a privilege that should be restricted to meet higher standards, whether based on age, literacy, gender, race or personal wealth?

Tier 3 – Social Practice

Texas v. Johnson (1989)

The Court ruled that offensive speech — such as flag burning — is protected by the First Amendment.

So, what if speech is so offensive – such as calling for the impeachment of a president — that it is no longer protected by the Constitution?

Plyler v. Doe (1982)

The Court struck down state statute denying funding for education of undocumented immigrant children.

So, since undocumented immigrant are not legal residents, their education should not be provided by public schools.

Engel v. Vitale (1962)

The Court ruled that prayer in public schools violated the First Amendment.

So, why should the issue of prayer in schools be determined by individual states if not localities?

Brown v. Board of Education (1954)

The Court overturned Plessy v. Ferguson finding that racially segregated public schools violate the Constitution’s Equal Protection Clause, ruling “separate educational facilities are inherently unequal.”

So, why, in the postmodern 21st century, can’t “separate educational facilities” be “inherently” equal?

Dred Scott v. Sandford (1857)

The Court ruled that Congress could legalize slavery and prohibit African Americans from suing in federal court.

So, in an era of gig-work neo-slavery, why not “revise” the ruling and deny rights to those considered “un-American,” whether defined by race, gender, national origin, religion or job?

Plessy v. Ferguson (1896)

The Court upheld the notion of “separate but equal” segregation laws in states.

So, in a postmodern world, why not “revise” the notion of “separate” to all those who challenge white, conservative powers-that-be?

Tier 4 – Personal Liberty

Cruzan v. Missouri Dept. of Health (1990)

The Court ruled that a person had a right to reject life-preserving medical treatment — their “right to die” – allowing the withdrawal of treatment with clear and convincing evidence that this is what the patient would have wanted.

So, in adhering to the primacy of the living person as codified in the Court’s likely overturning of Roe, why should anyone have the “right to die”?

Miranda v. Arizona (1966)

The Court ruled that the Fifth and Sixth Amendments require police to inform individuals in custody that they have a right to remain silent and to have an attorney.

So, in order to contain crime, why – for those who’ve been arrested – shouldn’t silence be a sign of guilt and, thus, there’d be no need for a defense attorney?


Today’s most conservative Christians may well envision returning America to a life invoking the glory – gory! – days of the early Puritan colonist. Like the days of old, such reactionary “originalists” could redefine an illegal act to include premarital sex (fornication), extramarital sex (adultery), sodomy (homosexuality) and interracial sex (amalgamation). And they could specify the two worst offenses to be bestiality involving young men and sexual witchcraft among older women.

The Puritans landed in New England in 1620 and, for the first quarter-century of settlement, occasional accusations of witchcraft were raised, but no one was executed. However, during the following half-century, 1647–1693, over 200 people were accused of witchcraft and about 30 were executed. Most of these alleged witches were women who came from more than 30 communities in Connecticut, Massachusetts and New Hampshire, including Easthampton, Long Island, now part of New York. Following the notorious Salem trials of 1692–1693, convictions and executions for witchcraft essentially ended.

Other forms of “originalist” law-and-order rules were applied to the newly settled America.  In 1662, the Virginia Assembly established the first law against interracial sex. In 1691, it passed a much stiffer law banning “negroes, mulattoes and indians intermarrying with English, or other white women, [and] their unlawful accompanying with one another.” Other colonies followed with similar bans, as exemplified by the North Carolina colony that, in 1715, adopted laws prohibiting interracial marriages.

Three-plus centuries later, America elected its first male president of mixed-race origin and, a few years later, he was followed by a female vice president, both children of once-scandalous interracial relations.  Who know how long before such people will, one day, be barred from holding public office?

The reactionary Christian right now controls the Supreme Court and will likely continue to do so for the next generation or more. Given this power, the face of the American legal system will change and, with it, social life.

Change in social and personal life could have any number of consequences — the reestablishment of separate-but-equal, ending of “one person, one vote,” blocking criminal safeguards, restricting freedom of speech and reshaping sexual life and relations (e.g., access to contraceptive, homosexual and interracial marriage).

This word of warning may, sadly, be too late to make a difference.

David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.