As the end of the Supreme Court’s 2021-2022 term is fast approaching, possibly one of the most anticipated decisions of the term will be the ruling in Dobbs v. Jackson Women’s Health Organization. In this case, Jackson Women’s Health Organization sued the state of Mississippi to stop the implementation of a 2018 law that prohibits abortions after 15 weeks of pregnancy. The justices heard arguments over the state’s law last year and the Court is expected to issue its ruling by June or early July.
A leaked draft opinion suggests that the court is likely to rule in favor of Mississippi and overturn years of precedent established in Roe v. Wade, which would give lawmakers the ability to ban or restrict abortions. The draft is not final; however, questions remain as to what a reversal of the Court’s abortion rights precedents would mean and how it may affect other critical rulings.
In 1973, Roe v. Wade established a constitutional right to abortion, which was later upheld in 1992 in Planned Parenthood v. Casey. The court has held that abortion rights are rooted in the 14th Amendment, which protects a wide range of civil rights and liberties including rights that are not enumerated but are so fundamental that “neither liberty nor justice would exist if they were sacrificed.” The ruling under Roe meant that abortion was constitutionally protected as one of those rights which fell under the umbrella of a broader right to privacy impacting marriage, family, reproduction, and contraception.
However, in the Dobbs majority draft opinion, Justice Samuel Alito writes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” His words seem to suggest that any right not explicitly preserved in the Constitution may be up for debate. Although Alito wrote that abortion is “fundamentally different” from other cases rooted in the right to privacy, as it involves a “critical moral question,” there are many other cases and precedents that touch on the question of whether states should be able to make laws that affect the most intimate parts of people’s lives.
Here are some other Supreme Court cases whose holdings rely on a right to privacy that may possibly be under scrutiny.
Planned Parenthood v. Casey (1992)
Planned Parenthood v. Casey was decided three decades after Roe and reaffirmed the ruling in Roe, although partially allowing for restrictions. It re-emphasized the right to abortion as grounded in the rights to liberty and privacy derived from the due process clause to the 14thAdmendment. Notably, Alito specifically mentions Casey in his draft opinion and writes that it must be overturned.
Lawrence v. Texas (2003)
The Court’s ruling here overturned laws which criminalized same-sex intimate relationships and the Court reaffirmed the right to privacy, as held in Roe. The Court held that the law prohibiting private homosexual activity between consenting adults violated the due process clause of the 14thAmendment. However, in his dissent, Justice Clarence Thomas wrote that he could not find a general right of privacy in the Constitution.
Griswold v. Connecticut (1965)
Here, the Court ruled that denying access to contraceptives to married couples violated the right to marital privacy. This ruling is significant as it helped establish the basis for the right to privacy with respect to intimate practices. Here the Court held that there was a constitutional right to marital privacy, but it struggled to identify a particular source in the text of the Constitution. Ultimately the Court said that the marital privacy right was implied by specific provisions in the Bill of Rights and also referenced earlier cases where the Court had found personal liberties that were constitutionally protected despite not being enumerated in the Constitution. The two dissenting opinions in this case, penned by Justices Hugo Black and Potter Stewart, argued that because the Constitution does not expressly mention privacy in any of its clauses, the Court had no basis to strike down the law in question.
Obergefell v. Hodges (2015)
Obergefell v. Hodges is a landmark civil rights case that made same-sex marriage legal. The Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the due process clause and the equal protection clause of the 14th Amendment to the Constitution. In his dissenting opinion, Justice Alito echoed some of his same ideology as in the Dobbs opinion, that the due process clause only protects rights and liberties that are deeply rooted in our nation’s history and tradition, and that any right to same-sex marriage would not meet this definition.
Although the leaked Dobbs opinion is a draft and may change as the justices discuss the opinion, it appears likely that Roe will be overturned. While it is not clear what the final implications may be, what we do know is that the overruling of a longstanding precedent will have lasting consequences.