How Pro-Choice Will Win at SCOTUS When Roe Gets Challenged (Hint: Not “Penumbras” or Viability)

State legislators are passing laws restricting the right to abortion that are specifically designed to challenge Roe v. Wade, the 1973 Supreme Court decision that said that women have the right to make their own decisions about abortion until “viability” (the ability to sustain life outside the womb).

This Solomonic decision point was controversially grounded in a Constitutional right of privacy, a right not explicitly enumerated by the Founding Fathers, but, according to SCOTUS, implied in the “penumbras” and “emanations” of other constitutional protections. This right was first described in the 1965 case of Griswold v. Connecticut, overturning a state law that prohibited the sale of contraceptives.

Yes, Connecticut had a law making it illegal to buy birth control. Justice William O. Douglas said that the Bill of Rights protections guaranteeing the right of speech and the right to assemble and the right to be protected against unwarranted search and seizure imply that more intimate rights are protected as well. In Roe, SCOTUS balanced the right of the mother and the right of the future child by giving the states authority to restrict abortion after “viability,” which later led the first person to serve on the Supreme Court who actually knew what it was to be…