Getting Rid of Fundamental Rights -- Discussion Questions for Dobbs, Part Three

JB

Here is the third of three sets of discussion questions on Dobbs v. Jackson Women's Health Organization that will appear in this year’s Levinson Balkin Con Law supplement. 

In this segment I discuss Justice Alito's assertion that there has been no substantial reliance on the right to abortion by women, and what Alito's reasoning in Dobbs portends for other implied fundamental rights such as the right to contraception, gay rights, and the right to same-sex marriage.

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10. “Generalized assertions about the national psyche.” Justice Alito argues that stare decisis should not require the Court to keep Casey, because, among other reasons, there has been no reliance on the right to abortion in the United States. 

When it upheld Roe on stare decisis grounds, the Casey Court declared that “To eliminate the issue of reliance ....would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 

Alito disagrees. The kind of reliance that matters, he argues, is “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’” By contrast, women’s expectation in organizing their lives that they will be able to obtain abortions if contraception fails and they become pregnant is simply too diffuse and abstract. Alito describes Casey’s account of women’s reliance as no more than “generalized assertions about the national psyche”—not the kind of concrete reliance that the Court has concerned itself with. 

Do you agree with Alito’s characterization of the interests at stake? Why isn’t women’s ability to plan their economic, social, and family lives a very important form of reliance? 

11. Eliminating fundamental rights. The Supreme Court has, in the past, eliminated constitutional protection for rights, for example, when it removed special protection from freedom of contract in West Coast Hotel v. Parrish. It has greatly limited the effect of Contract Clause from early 19^th century decisions. It has watered down the procedural guarantees of the Due Process Clause from where they stood in the early 1970s. Over the past fifty years the Court has significantly cut back on criminal procedure protections and eliminated much of the Establishment Clause’s guarantees. But in Dobbs the Court removes constitutional protection from a right which it had previously declared important to women’s equal participation in the “economic and social life of the Nation” Is this different in kind? 

12. The fate of other implied fundamental rights after Dobbs. In Dobbs, Justice Alito adopts the standard for determining the scope of protected liberties advocated by the dissenting Justices in Lawrence and Obergefell. At the same time, he goes out of his way to insist that nothing in his opinion endangers the Court’s other decisions protecting gay rights, the right to marriage (including same-sex marriage) or the right of married and single persons to purchase and use contraceptives. The reason, he explains, is that only in the case of abortion is there destruction of unborn life. “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.” 

The issue is somewhat more complicated than Alito lets on, however, for three reasons. 

First, Alito’s argument for why Roe and Casey were clearly incorrect is Glucksberg’s test of whether a right is deeply rooted in our Nation’s history and traditions. But rights to contraception (by married or single persons), gay rights, and the right to same-sex marriage also fail this test. (In his dissent in Obergefell, Alito makes clear that he believes that “it is beyond dispute that the right to same-sex marriage is not among those rights [deeply rooted in our Nation's history and traditions].”). 

In Dobbs, Alito distinguishes these cases from abortion on a different ground: none of these rights creates the same kind of harm as abortion—the destruction of a fetus. Therefore a great deal depends on whether what really matters to the Court in the long run is whether a right is deeply rooted in our Nation’s history and traditions (Glucksberg) or whether one must also show that the exercise of the right also causes a distinctive kind of harm. Note, however, that if harm is the concern, some abortion opponents argue that some forms of contraception—for example, Plan B emergency contraception—may prevent a fertilized ovum from attaching to the uterus, guaranteeing its eventual destruction. In addition, opponents of same-sex marriage argue that it does cause deep societal harm. 

Second, some of the Justices may change their minds about whether to keep these precedents. Equally important, the Court’s composition may change. In 2016 the Court vigorously reaffirmed Roe and Casey in Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016). Six years later, Dobbs overturned both. So a lot can happen to Supreme Court doctrine in a very short time if new Justices have different views and priorities than older ones did. And, not to put too fine a point on it, Justice Thomas has already made clear that he is ready to overturn all of the precedents Alito says are untouched by Dobbs. 

Third, there are many ways to cut back on contraceptive rights, gay rights, and same-sex marriage without overturning existing decisions. The Justices may read these decisions narrowly or refuse to extend them in later cases. They may use the Free Speech and Free Exercise Clauses to limit their impact. Thus, one should not assume that Dobbs is the furthest the Court will go in cutting back on implied fundamental rights any more than one should assume that Bruen is the furthest the Court will go in protecting Second Amendment rights.