The Supreme Court’s Dobbs decision and the right to reproductive freedom have justifiably animated millions of voters across the political spectrum. But I fear that something larger gets lost in the focus on women’s rights. Dobbs portends a much larger loss a freedom for everyone, regardless of sex, race, religion, or political affiliation. At its core, Dobbs is about whether individuals have any fundamental freedoms from governmental control. And I don’t hear any democratic candidates for national offices raising the alarm over what another Trump term—and the possibility of him appointing even more Supreme Court justices—would mean to personal freedoms.
To understand my point requires a dive into the Supreme Court cases that led to the Roe decision and those that then built upon it, creating the rights to interracial marriage, contraception, sexual choices of consenting adults, and gay and lesbian rights to marriage. All these rights now rest on a knife’s edge, and the appointment of one or two more Supreme Court justices may cut those rights away. I also need to confess that while I am a lawyer, I do not consider myself a constitutional scholar of any depth. The description and analysis of the cases below is my own, and I’m sure there may be comments that will find fault with both.
To understand both Roe and Dobbs, one must understand the origins and reasoning that the cases rely upon. Prior to 1965, there was no recognized right to privacy that limited governmental regulation of private conduct, except for those in the Bill of Rights—i.e., the freedom of association, speech, and religion, and the guarantee against unreasonable searches and seizures. It wasn’t until 1965 that a right of personal privacy from intrusive governmental regulation was recognized by the Supreme Court in Griswold v. Connecticut. Griswold involved a Connecticut version of the Comstock Act that prohibited the sale, possession or use of all forms of contraception. Voting 7-2, the Supreme Court held that there was a “right to marital privacy.” The majority opinion, written by Justice Warren Douglas, relied on the “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments which, taken together, created a “zone of privacy” that the Connecticut law infringed upon. Importantly, Justice Harlan’s concurrence relied instead on the Fourteenth Amendment to find that making the use of contraceptives a crime was an unjustifiable invasion of privacy. Justice Harlan’s interpretation became the one most relied upon in the subsequent cases below.
Two years after Griswold, in Loving v. Virginia, the Supreme Court was faced with a Viginia law that prohibited interracial marriages. In overturning the law, the Court found marriage to be “one of the ‘basic civil rights of man’” and a “fundamental freedom,” long recognized as “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” And two years after that, in the case of Stanley v. Georgia, the Court struck down a law criminalizing the mere possession of pornographic material. The Court wrote that “[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.” The Court held that “the Constitution protects the right to receive information and ideas…regardless of their social worth,” and that this right “is fundamental to our free society. Moreover,…[in the context of] a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home—that right takes on an added dimension.”
In 1972, the Court’s opinion in Eisenstadt v. Baird expanded upon its decision in Griswold. Writing for the majority, Justice Brennan found that “[i]f, under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible…If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child.”
In 1973 the Court issued its opinions in Roe v. Wade. Roe involved a Texas statute prohibiting abortions unless necessary to save the life of the mother. In a 7-2 decision, the Court began by acknowledging that abortion was a highly controversial, sensitive, and emotional issue and that one’s view on the subject is based on their philosophy, experiences, religious beliefs, attitudes toward life and family, and moral standards. It then proceeded to detail the historic views on abortion over the last 2,500 years. The Court noted that by depriving a pregnant woman a choice altogether can impose multiple harms, including a “[s]pecific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with an unwanted child, and there is a problem of bringing into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.” Relying in large part on the cases discussed above, the Court “conclude[d] that the right to personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.” The Court rejected the argument that a fetus is a “person” subject to constitutional protections. But it did find a legitimate governmental interest in “the potentiality of human life.” After a discussion of both historical and religious views—ranging from life beginning at conception to life beginning only at live birth—and the medical literature, the Court adopted an interim view of fetal “viability,” defined to be the moment when the fetus is potentially able to live outside the mother’s womb, but with artificial aid. In the end the Court held that up until the end of the first trimester, the abortion decision was solely between the woman and her physician. During the second trimester, a state has an interest in protecting the health of the mother and may impose regulations “that are reasonably related to maternal health.” And during the third trimester, after the point of viability, to promote the interests of potential human life, the state may regulate and even prohibit abortions.
In 1992, in a 5-4 decision, the Court reaffirmed Roe in Planned Parenthood v. Casey, but limited its application. Pennsylvania had enacted a statute post-Roe that prohibited abortions unless the woman seeking an abortion had given her informed consent prior to the procedure; that she had been provided with certain information at least 24 hours before the procedure; that in the case of minors, there was written consent by at least one parent; and that absent limited exceptions, a married woman must sign a statement affirming that she has notified her husband of her intent. The law exempted these requirements in the event of a “medical emergency.” The majority let stand all the Pennsylvania requirements except for the husband notification requirement. In a rebuke of Justice Scalia’s dissent, which rested on the fact that the Constitution says nothing about abortion and that the Fourteenth Amendment protects only those rights recognized at the time of its enactment, the majority noted that it is tempting “to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. But of course this Court has never accepted that view.” It noted that it could also be tempting to limit the protections of the Due Process Clause to “only those practices…that were protected against government interference…when the Fourteenth Amendment was ratified. But such a view would be inconsistent with our law.”
In the 2003 case of Lawrence v. Texas, the Court overturned the conviction of two men for violating the state’s prohibition of two persons of the same sex engaging in sexual contact. The Court held that “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” The Court found that “[t]he Casey decision again confirmed that our laws and traditions afford constitutional protections to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Justices Scalia and Thomas dissented in an option written by Scalia. Foreshadowing the great irony of Justice Alito’s opinion in Dobbs, Scalia wrote that “this Court has chosen today to revise the standards of stare decisis” [a doctrine of following prior principles and decisions, i.e. precedents of the Court] by rejecting an earlier holding in the 1986 decision of Bowers v. Hardwick, which upheld a Georgia statute criminalizing sodomy between two men. Scalia went on to state that the Texas statute “seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’” and that states should be free to impose their definition of “majoritarian sexual morality.” With great distain, Scalia wrote that the majority had “signed on to the so-called homosexual agenda” and that “the Court has taken sides in the culture war.”
Gay and lesbian marriage was addressed by the Court in 2015 in the case of Obergefell v. Hodges. In another 5-4 decision, Justice Kennedy wrote that “the annals of human history reveal the transcendent importance of marriage” demonstrated by “[t]he centrality of marriage to the human condition.” Surveying the history of marriage and the “deep transformations in its structure,” he found that “[t]hese new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristics of a Nation where new dimensions of freedom become apparent to new generations.” Recognizing the many legal and societal benefits granted to married couples “placing that institution at the center of so many facets of the legal and social order,” the Court held that “[t]her is no difference between same-and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from the institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.” The majority opinion concluded that “[t]hese considerations lead us to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”
In June 2022 the Court broke the chain of 57 years of Supreme Court precedent in the Dobbs decision. The majority opinion of the Court, written by Justice Alito, begins by noting that abortion is “a profound moral issue.” The decision then holds that Roe and every subsequent case that upheld Roe was “an exercise in raw judicial power” and based on a “wealth of information” that was “constitutionally irrelevant,” “plainly incorrect,” and had “no bearing on the meaning of the Constitution.” “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including…the Due Process Clause of the Fourteenth Amendment.” When it came to stare decisis, which Scalia lamented was not applied in Lawrence, Alito wrote that “when it comes to our Constitution…we place a high value on having the matter settled right. In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.” Finally, anticipating that the Dobbs decision cast doubt on the holdings in Griswold, Eisenstadt, Lawrence and Obergefell, Scalia wrote that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Justice Thomas’ concurring opinion laid bare the lie of Scalia’s claimed limitation on the reach of Dobbs. Thomas would have nothing to do with any restrictive view of the scope of the Dobbs decision. Citing only to his own prior opinions, he wrote that the “Due Process Clause at most guarantees process,” and that it does not forbid the government from infringing on “fundamental liberty interest at all.” Thomas believes that the entire concept of “substantive due process” is an “oxymoron that lacks any basis in the Constitution.” Based on this view of the Constitution, Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell…After overruling these demonstrably erroneous decisions,” the Court should revisit every case that has found a right premised on substantive due process.
The deadly irony of the “conservative” justices’ views on the right of privacy and fundamental liberty is that true conservatism is based on a belief in the limited role of government and the individual’s right to be largely free from regulation. But when it comes to the Constitution and personal freedoms, particularly in the arena of matters of morality, they spin the dial 180 degrees and allow for unrestrained governmental regulation of private affairs and a limitation on personal freedoms unless specifically and expressly granted by the Constitution. So, when you talk to your friends and family about the stakes of the upcoming election, don’t limit yourself to a discussion about reproductive freedom. It’s about much more than that. It’s about freedoms for all.
