Dobbs and the Threat to 14th Amendment Rights

Since the Dobbs decision in June 2022, there has been extreme public concern that human rights and safety during pregnancy have been compromised. As our previous blog posts have discussed, this broad threat to bodily autonomy has sobering implications. Popular apprehension has only grown as stories emerge about denied emergency abortions, delayed miscarriage treatments, and barriers to receiving unrelated medical care–[1] scenarios that have the potential for serious negative outcomes, medical complications, and even death. A second set of concerns have emerged in parallel to those on bodily autonomy and are focused on the threat the Dobbs decision poses to other protected rights. Even though the Supreme Court’s majority opinion, written by Justice Alito, states that Dobbs is not meant to overturn other cases, the concurring opinions of the justices who signed on to Alito’s opinion suggest other cases could be reversed. By overturning Roe, a landmark case decided 50 years ago, the Court has unsettled other legal precedents, including cases concerning birth control access, private and consensual intimacy, and marriage. Justice Thomas in particular has baldly stated a willingness to reconsider and even overturn several past cases.[2] The most widely discussed risk has been the threat to the “marriage cases,”— Loving v. Virginia (1967) and Obergefell v. Hodges (2015)– in which the Supreme Court rejected laws discriminating against interracial and same-sex couples, respectively.[3]

It’s clear why concerns around bodily autonomy have emerged from Roe’s reversal, but why are other reproductive, relationship, and marriage rights at risk due to an abortion rights decision? A step into legal history to place Roe, Casey, and Dobbs into a broader chronology of the U.S. Supreme Court can help us answer this question.

CONSTITUTIONALITY, PRECEDENT, AND INTERCONNECTED CASES

The Supreme Court interprets the Constitution and the constitutional legality (or constitutionality) of federal and state laws. When the Court decides a case, their focus is whether the law at hand violates the Constitution. Courts are supposed to decide cases based on the precedent of higher courts and their own earlier decisions. Traditionally, precedent is not reversed unless there is something fundamentally wrong with the original case. New cases can make small changes to earlier precedent, but don’t fundamentally change the original. In this way, old cases are linked to new cases and work as a set.

Roe v. Wade is part of a few sets of precedent that are linked together. These include reproductive rights cases, broader right to privacy cases, and especially cases that use the 14th Amendment Due Process Clause to determine fundamental rights.

The 14th Amendment was added to the Constitution after the Civil War in order to protect certain rights for people recently freed from slavery by the 13th Amendment. Specifically relevant to our discussion of Dobbs is the Section 1 Due Process Clause. This clause affirms that states cannot “deprive any person of life, liberty, or property, without due process of law.”[4] While there is disagreement amongst legal interpreters about how and when the clause should be used, it has been cited to protect fundamental rights with the reasoning known as Substantive Due Process. Under this reasoning, when a person’s fundamental rights are violated by the state, they are deprived of liberty without due process.

TIMELINE

Below is a chronological breakdown of the cases linked to Roe v. Wade through precedent,  including brief explanations of the Court’s original constitutional reasoning with a focus on the 14th Amendment:

1965 | Griswold v. Connecticut

Outcome: Married couples have a constitutional right to privacy that includes a protection of their decision whether or not to use contraceptives; laws that made it illegal to use birth control are unconstitutional

Constitutional Argument: Majority opinion finds that the right to privacy is implied by the 1st, 3rd, 4th, 5th, 7th, and 9th Amendments. A concurrence suggests the Court could alternatively use of 14th Amendment Due Process Clause for the same

1967 | Loving v. Virginia

Outcome: Bans on interracial marriage treat couples unequally because of the race of their partner; laws violating a right to marriage are unconstitutional

Constitutional Argument: Right to marriage in the 14th Amendment Due Process Clause and racist violation of the 14th Amendment Equal Protection Clause

1972 | Eisenstadt v. Baird

Outcome: The right to privacy (and implications for birth control) applies to single people in the same way it does to married couples

Constitutional Argument: Unequal treatment based on marital status violates 14th Amendment Equal Protection Clause. Griswold reasoning applies to everyone

1973 | Roe v. Wade

Outcome: A right to abortion— with limits based on a trimester system—was found to be part of the right to privacy

Constitutional Argument: Right to privacy now based on 14th Amendment Due Process Clause from Griswold concurrence

1992 | Planned Parenthood of Southeastern Pennsylvania v. Casey

Outcome: States could place certain limits on abortions performed after viability, so long as the laws did not result in an “undue burden” or health risk

Constitutional Reasoning: Right to privacy in 14th Amendment Due Process Clause, adjusting Roe v. Wade

2003 | Lawrence v. Texas

Outcome: Overturned Bowers v. Hardwick (1986); state laws banning gay sexual intimacy violate liberty and are unconstitutional

Constitutional Reasoning: Right to privacy in consensual intimacy under 14th Amendment Due Process Clause; Alternative concurrence used Equal Protection Clause due to homophobic law

2015 | Obergefell v. Hodges

Outcome: Same-sex couples across the country can legally formalize their relationships, which confirms their status as families under the law

Constitutional Argument: 14th Amendment Due Process Clause protects the right to marriage and related rights from violations of liberty

WHAT ABOUT DOBBS?

How does Dobbs fit into this history? What reasoning did the Court use, and what are its implications for previous cases?

In Dobbs, the Court argued that Roe and Casey were wrongly decided, both historically and constitutionally. The majority’s historical reasoning was heavily disputed in the minority dissent written by Justice Kagan and has been further criticized elsewhere.[5] The majority’s constitutional reasoning argues that the use of the 14th Amendment Due Process Clause in Roe and Casey was flawed and unworkable and that no liberty would be violated by a legal ban on abortion. The Court thus reversed the right to an abortion and determined that the states should be in charge of deciding abortion laws. The status of rights found in the 14th Amendment Due Process Clause are key to the Dobbs decision. As with Lawrence in 2003, the Dobbs case broke from the guidelines of precedent. However, where Lawrence broke from precedent in order to confirm a right that had been denied by states, Dobbs altered precedent in order to take away a previously acknowledged right.

Knowing the uncertainty that reversing a right would cause, Justice Alito’s majority opinion reiterates several times that Dobbs does not threaten other rights found using Substantive Due Process. However, Justice Thomas’ concurrence explicitly argues that Dobbs indicates that the Court should reconsider three other Substantive Due Process cases: Griswold, Lawrence, and Obergefell.[6] As we have seen from the chronology above, this could also potentially threaten Loving, though it was decided partially on Equal Protection Grounds. By repealing a right discovered through Substantive Due Process, what the Dobbs reasoning has done is indicate a willingness in the Court to reconsider past civil rights cases, particularly cases tied to reproductive rights, personal relationships, and marriage.

Despite Justice Alito’s assurances, the threat to these rights cases has raised concerns among the public and their representatives that the Court might overturn the marriage cases that people across the country rely on for the legal standing of their families. This concern prompted the current Congress to act preemptively by passing The Respect for Marriage Act, which the president has since signed into law. The bill asserts that interracial and same-sex marriages that are legal in one state must be accepted as legally valid by other states. The act does not directly protect the legality of these marriages state-by-state, but instead serves as a guard rail to ensure that if the Court sends the decision of marriage rights back to the states, marriages legally performed in one state could not be rejected by another, or by the federal government.[7] The Court would not be able to automatically overturn this legislation regulating interstate marriage rules, even if the Court rejected Substantive Due Process and overturned these marriage rights. That being said, Congress should not shy away from passing a carefully crafted, national level protection in addition to The Respect for Marriage Act, citing both Substantive Due Process as well as  alternate reasonings for the national level legislation (such as the Equal Protection Clause). 

We must await to see if any moves are made to defend Griswold and Lawrence. Overturning the privacy right could have extremely far reaching consequences, not only for birth control and intimacy, but also in terms of broader bodily autonomy, internet privacy law, and beyond. The truth is that every part of our political system is intricately interconnected. In the 20th century and the beginning of the 21st, we have relied heavily on the Supreme Court to protect many civil rights protections, including through the Substantive Due Process Clause and its language of “liberty.” Seeking constitutional protection through the Court is not wrong as a strategy, and has helped secure significant wins for social movements and civil rights in the past decades. However, the Supreme Court cannot be the only avenue for social change that we rely on. The current cases– and particularly Dobbs— remind us that the Court is not a politically neutral body and the Constitutional interpretation represented on the Court can change based on the nine individuals on the bench, their constitutional philosophy, and their individual politics.  

Engineers build mechanical systems with intentional redundancy and repetition that create greater stability; the same redundancy for civil rights must be sought from our legal, political, and social systems. Just as we would not rely solely on Congress, or the legislatures of our individual states, for our rights, neither should we rely solely on the Court. The Respect for Marriage Act is a response to Dobbs that acknowledges that reality and should serve as an example for future legislative actions that can similarly secure the protections offered judicially to  “life, liberty, or property” as it affects bodily autonomy and human rights writ large.

Cases Cited

Griswold v. Connecticut, 381 U.S. 479 (Warren, 1965), https://supreme.justia.com/cases/federal/us/381/479/ 

Loving v. Virginia, 388 U.S. 1 (Warren, 1967), https://supreme.justia.com/cases/federal/us/388/1/ 

Eisenstadt v. Baird, 405 U.S. 438 (Burger, 1972), https://supreme.justia.com/cases/federal/us/405/438/ 

Roe v. Wade, 410 U.S. 113 (Burger, 1973), https://supreme.justia.com/cases/federal/us/410/113/ 

Bowers v. Hardwick, 478 U.S. 186 (Burger, 1986), https://supreme.justia.com/cases/federal/us/478/186/ 

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (Rhenquist, 1992), https://supreme.justia.com/cases/federal/us/505/833/#tab-opinion-1959104 

Lawrence v. Texas, 539 U.S. 558 (Rhenquist, 2003), https://supreme.justia.com/cases/federal/us/539/558/ 

Obergefell v. Hodges, 576 U.S. ___ (Roberts, 2015), https://supreme.justia.com/cases/federal/us/576/14-556/ 

Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (Roberts, 2022), https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600818 

End Notes

[1]  Carrie Feibel, “Because of Texas’ abortion law, her wanted pregnancy became a medical nightmare,” NPR, July 26, 2022, Accessed Online: Dec 12, 2022, https://www.npr.org/sections/health-shots/2022/07/26/1111280165/because-of-texas-abortion-law-her-wanted-pregnancy-became-a-medical-nightmare; Selena Simmons-Duffin, “Her miscarriage left her bleeding profusely. An Ohio ER sent her home to wait,” NPR, Nov 15, 2022, Accessed Online Dec 12, 2022, https://www.npr.org/sections/health-shots/2022/11/15/1135882310/miscarriage-hemorrhage-abortion-law-ohio; Lindsey Tanner, “Abortion laws spark profound changes in other medical care,” AP News, July 16, 2022, Accessed Online: Dec 12, 2022, https://apnews.com/article/abortion-science-health-medication-lupus-e4042947e4cc0c45e38837d394199033 

[2]  “Justice Thomas, Concurring,” Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (Roberts, 2022), https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600818

[3] Domenico Montanaro, “Biden signs the Respect for Marriage Act into Law,” NPR, December 13th, 2022, https://www.npr.org/2022/12/13/1142594193/biden-signs-the-respect-for-marriage-act-into-law

[4] U.S. Const. Amdt XIV

[5] “Justice Brennan, Justice Sotomayor, and Justice Kagan dissenting,” Dobbs v. Jackson Women’s Health Organization (2022), https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600818; The Organization of American Historians, and the American Historical Association, “OAH-AHA Statement on the Dobbs v. Jackson Decision,” OAH, July 2022, Accessed Online: December 23, 2022, https://www.oah.org/insights/posts/2022/july/joint-oah-aha-statement-on-the-dobbs-v-jackson-decision/ (The WM Berkshire Affiliate Chapter has been begun with the help of a grant from the American Historical Association, one of the co-authors of the linked statement and the largest association of professional historians in the world.)

[6] Dobbs v. Jackson Women’s Health Organization (2022), https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600818

[7] Kaitlyn Radde, “What does the Respect for Marriage Act do? The answer will vary state by state,” NPR, December 8th, 2022, Accessed Online: December 23rd, 2022, https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state