The Volokh Conspiracy

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Why Other Fundamental Rights Are Safe (At Least for Now)

The conservative majority's commitments on contraception, sexual intimacy, and same-sex marriage


In reaction to today's decision in Dobbs v. Jackson Women's Health, overruling Roe v. Wade, advocacy groups are warning about the potential implications for other rights. Some analysts are pointing specifically to Justice Thomas's concurring opinion, which calls for a reexamination of substantive due process precedents like Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015).  Certainly the three-Justice joint dissent is sounding the alarm.

Has the mask finally dropped, revealing the true intentions of the majority to wipe the slate clean of unenumerated fundamental rights that social and religious conservatives don't like?

To begin an answer to that question, I count no fewer than four places in the Dobbs opinion that disavow any implications for other rights.  I refer to these as the reassurance passages. Two of them were already in the leaked draft opinion. Two more have been added because they are responses to the dissent (which would not have been available when Justice Alito circulated his first draft in February).

(1) Slip op. 32 (in the original draft), after listing numerous substantive due process rights:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call "potential life" and what the law at issue in this case regards as the life of an "unborn human being." See Roe, 410 U. S., at 159 (abortion is "inherently different"); Casey, 505 U. S., at 852 (abortion is "a unique act"). 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, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.

(2) pp. 37-38 (added to the final opinion):

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States' interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent's analogy is objectionable for a more important reason: what it reveals about the dissent's views on the protection of what Roe called "potential life." The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a "potential life," but an abortion has that effect.

(3) p. 66 (in the original draft):

Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would "threaten the Court's precedents holding that the Due Process Clause protects other rights." Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, "[a]bortion is a unique act" because it terminates "life or potential life." 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is "inherently different from marital intimacy," "marriage," or "procreation"). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

(4) pp. 71-72 (added to the final opinion)

Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion." Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed "potential life." Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by "appeals to a broader right to autonomy." Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.

The number and clarity of these passages are extraordinary.  To these one could add the separate concurrence of Justice Kavanaugh, who addresses concerns that were raised in the briefs:

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.

(As an aside, I don't count Justice Thomas's view as portending much.  It's notable that he wrote only for himself.  His views about substantive due process are longstanding, well-known, and idiosyncratic.  No other sitting justice has ever expressed an interest in completely abandoning substantive due process and all of the precedents it has generated.)

The reassurance passages go well beyond mere rote observations that the Court is not overruling these precedents because it has neither been asked to do so nor is it required to do so in order to decide the case before it. The passages are also not mere bald assertions, devoid of substance, which can be dropped without any pretense of consistency.  Instead, they contain two substantive principles.

The first is the Court's observation that abortion, which involves the taking of what is at least potential human life, has no parallel in other rights-contexts. That distinction is admitted by just about everyone. The Court does not say precisely how this distinction should affect the constitutional analysis of whether the right exists. But I read the Court as suggesting that the analysis of whether a right should be protected turns in part on the countervailing interests at stake in not protecting it–here, the destruction of potential life (the kind of ultimate "moral question" the Court thinks judges cannot or should not resolve). Resolution of the potential life question also goes to the strength of the government's interest in regulation.

Further, to the extent new rights can be recognized (or old rights can be recognized in new contexts), we do so by analogy.  But there is no analogy close to the abortion right, which is sui generis.  Under this view, the right to same-sex marriage (Obergefell) is at least adjacent to the recognized right to marry (Loving) in a way that the right to end a pregnancy (Roe) is not adjacent to the recognized right to prevent a pregnancy (Griswold).

The second principle is new in the published decision.  The opinion notes that, even if some other substantive due process decisions were initially wrong, the Court should continue to stand by them under stare decisis principles. Specifically, the reliance interests in, say, same-sex marriage are much more concrete.  (Query, however, why the reliance interests in Lawrence and Griswold would be any greater than in Roe.)  Also, protection of the rights to contraception, sexual intimacy, and marriage, are more judicially manageable (workability).  Gay couples have a right to marry on the same terms as others, which does not depend on whether a regulation places an undue burden on that right. It's an on-or-off switch, not a balancing of incommensurable interests.

I have previously written that overruling Roe would present no "immediate or direct threat" to the various other substantive-due process precedents, including Obergefell.  The Court has now effectively doubled-down on its reassurances about this.  There are simply not five votes to overrule Obergefell or the other decisions.  I'd wager there are not more than two to do so.

It is true, as both Justice Thomas and the dissent point out, that rights to contraception, sexual intimacy, and same-sex marriage do not fit easily within the Court's narrow history-and-tradition methodology. That might spell longer-term trouble under a different cast of Justices who may not feel as much obligation to ancestral precedents.

So could ObergefellLawrence, Griswold, and even Loving be overruled sometime in the future? Of course. We know that even half-century-old precedents are not sacred. And the future is a long time. It is a foreign land in which anything can happen. But Dobbs does not augur a majority willing to go there.