The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When I was a college senior researching the origins of Griswold v. Connecticut (1965), there was a story making the rounds that one of Justice Scalia's clerks had walked into his chambers and asked the Justice, "What are you going to do about Roe v. Wade?" Scalia was said to have replied: "Roe? That's easy. The real question is, 'What are we going to do about Griswold?'" That summer the rumor proved accurate in at least one respect. Justice Scalia penned a concurrence in Webster v. Reproductive Health Services (1989), arguing forcefully that Roe should be overruled.
What Scalia would have done about Griswold was always a far more theoretical question. States were not falling over each other to ban condoms, IUDs, or the pill. The penumbras-and-emanations test was widely mocked, but the 1987 Supreme Court hearings of Robert Bork had demonstrated that the result in Griswold could not be seriously questioned by a nominee.
Now that the reversal of Roe appears imminent, the question of what the Supreme Court will do next arises once more. Attention is focused mostly on the precedents involving gay rights, like Obergefell v. Hodges (2015), the same-sex marriage decision, and Lawrence v. Texas (2003), which recognized a right of private adult sexual intimacy. These involve matters, like abortion, not specified in the text of the Constitution.
While there are many such "unenumerated" constitutional rights–like those to rear and educate a child, to live with relatives, to resist forced sterilization and medical treatment, and to marry a person of a different race–doubts expressed about their continued vitality seem designed mainly to save Roe by warning of the theoretical consequences of overruling it. There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.
On its face, the draft majority opinion in Dobbs disclaims any intent to undermine existing unenumerated rights beyond the abortion precedents of Roe and Planned Parenthood v. Casey (1992).
The Solicitor General warns that overruling [Roe and Casey] would "threaten the Court's precedents holding that the Due Process Clause protects other rights." [Listing Obergefell, Lawrence, and Griswold]. That is not correct… And to ensure our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion.
Draft op. at 62. Many have fretted that the author of the Dobbs draft, Justice Alito, is not to be trusted because he dissented strongly in Obergefell. But Alito is not writing for himself here. Indeed, this passage seems to have been written with an eye on keeping the majority from splintering into discordant concurrences. A harder and purer opinion might not get the signatures of Justices Barrett, Kavanaugh, or Gorsuch. This consideration should ease genuine concerns about aggressive use of the decision immediately to undermine rights to same-sex marriage and private sexual conduct.
Moreover, to justify cabining its decision in this way, the draft opinion points to what it terms a "sharp" and "critical moral distinction" between abortion and all of the other unenumerated rights: abortion "destroys" a "potential life." Draft op. at 32. Even very strong opponents of same-sex marriage grasp this distinction. With a notable exception, few of the amici siding with Mississippi called Obergefell or Lawrence into question.
The possible risks to Obergefell and Lawrence do not really come from overruling Roe, which is why Dobbs does not present an immediate or direct threat to them as precedents. Instead, the long-term perils emanate from two other sources. The first and deepest is the determined resistance of a certain subset of religious conservatives. Unlike with abortion, however, the vast majority of Americans have moved on.
The second risk is what we might come to call the Dobbsian mode of substantive constitutional-rights analysis (which is really a redux of Washington v. Glucksberg (1997)). Tell us, the draft opinion instructs, where are these specific rights in the text? Don't give us talk of "liberty," for that means too many things to too many people. If you can't do that, where are affirmative protections for such specific rights in the granular history and traditions of the nation before the dawn of the 21st century? In other words, the draft opinion offers very little in principle that secures a right to gay marriage or homosexual sex. Gone are paeans to autonomy, dignity, and the mystery of the universe. That sort of judicial rhetoric will go the way of penumbras and emanations. In the Dobbsian world, "new" rights don't stand a chance.
On the other hand, for those who support constitutional protection of same-sex marriage, the Dobbs draft salvages some important elements of stare decisis analysis. It would allow a future Court to write an opinion concluding reluctantly that, even if it was wrong (provided it was not "egregiously wrong"), Obergefell must be preserved because so many gay couples and the families they lead have concretely depended upon it for long-term planning. And Lawrence must be preserved because, if they can marry, same-sex couples must also be allowed to have sex.