Dobbs v. Jackson Women’s Health Organization (2022) overturned the abortion rights set by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). In its majority opinion in Dobbs, the Supreme Court stated that its ruling only affected abortion and not other rights that followed from the right to privacy, including contraceptives, same-sex marriage and same-sex sodomy. However, the dissenters argued that those rights are put in jeopardy by Dobbs because the ruling casts doubt on privacy laws that are not enumerated in the Constitution.
Looking closely at Griswold v. Connecticut (1965), Lawrence v. Texas (2003) and Obergefell v. Hodges (2015), the dissenting opinion in Dobbs certainly has the better case to argue the potential unraveling of privacy rights.
The majority in Griswold ruled that there is a right to marital privacy in the use of contraceptives. Although the Constitution does not explicitly give the right to privacy, the Court found the right existed in the First, Third, Fourth and Ninth Amendments. Lawrence established the right to engage in private, consensual sexual acts under the Due Process Clause of the Fourteenth Amendment, which states “No state…shall deprive any person of life, liberty, or property, without due process of law (Privacy); nor deny to any person within its jurisdiction the equal protection of the laws (Equality).” Obergefell found that the right to marry is protected by the Constitution under the Fourteenth Amendment’s due process clause.
Each case is built upon the other to determine privacy rights. In Lawrence, the majority relied on Griswold about protecting the private decisions of consenting adults, and the overturning of Roe, which protected the private decision of an abortion, was just the first to go in the fall of the privacy rights dominoes.
The Supreme Court had to reach long and far when trying to justify its ruling in Dobbs, and in the majority opinion, Justice Samuel Alito stated that precedent would not factor into the decision because “Roe was egregiously wrong from the start.” Alito argued one must look to the Constitution to determine if something is protected by substantive due process, and abortion was not explicitly described as a liberty or a right, nor did the Constitution mention the word abortion at all. Additionally, one must take American history and tradition into account when making judicial decisions, and abortion. Noneone of the rights like use of contraceptives, same-sex marriage or same-sex sodomyare rooted in American history.
Abortion is only built on other unenumerated privacy rights like Griswold and Lawrence. Because the right to have an abortion is built on previous decisions, it’s likely that Griswold and Lawrence are threatened. The Dissent in Dobbs argued that if you apply those same arguments to same-sex marriage, contraceptives, sodomy, etc., that will result in overturning those cases.
The opinion also explained that abortion destroys “potential life” and Alito argued that none of the other previous decisions involved the potentiality of life. He argues that “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion…”
However, Griswold was about potential life because it was about the use of contraception. Contraception is inextricably tied to abortion because contraception prevents pregnancy. Plan B or other emergency medications are considered contraceptives but could be considered an abortion, which would be unconstitutional based on Dobbs, which means the Court could go after contraceptives to limit possible abortions.
Supreme Court Justice Brett Kavanaugh argued in his concurring opinion that “The Court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide…” He explains that the Supreme Court should not have the ability to decide over issues of morality, but if that were true, then privacy cases before Roe (ie. Griswold, and Lawrence) would not have established those rights. Same-sex sodomy, the use of contraceptives and gay marriage are unquestionably moral issues, and the Court ruled in favor of all three. It would not be surprising if the Supreme Court took a similar approach in other privacy rights cases using the morality argument.
Additionally, Kavanaugh claims that women are still free to travel to other states to get an abortion, because of the “constitutional right to interstate travel.” However, this is inconsistent with the majority and concurring opinions because there is no right to interstate travel in the Constitution, just as there is no right to an abortion explicitly in the Constitution.
If the Supreme Court stays as conservative as the majority of it is, then we can see the possibility of the Court relying on Dobbs to overturn future privacy rights cases. This is even more likely when Justice Clarence Thomas explicitly said the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
The dissenting opinion cites Chief Justice John Marshall, saying that the Constitution is a living document that must endure an ever-changing society that faces new challenges. Following the dissenting opinion’s logic, we must not simply look at how the framers originally intended the Constitution to be, but also confront new problems that either weren’t addressed during the framing or didn’t exist in 1788. The framers knew the U.S. would change so they didn’t write specific rights into the Constitution, intending for them to be created later. And the Court has done just that in its history, creating new rights and liberties. Roe was the same.
The ruling in Dobbs is a walking violation of every person’s guarantees of liberty and equality for all and undermines all other privacy rights laws. A lawsuit filed in Amarillo, Texas against the U.S. Food and Drug Administration (FDA) is seeking to block the use of mifepristone and misoprostol, which are abortion medications and account for more than half of all abortions in the U.S. and has been legal since 2000 when it was first approved by the FDA. As the federal judge making the decision is conservative, abortion advocates are worried the lawsuit could further restrict women’s access to abortion nationwide.
