By Lara McCormick, Honeycomb Contributor
UPDATE: On June 24th, 2022 the Supreme Court released the official decision for Dobbs v. Jackson Women’s Health Organization in which Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were overturned. The court stated there was no constitutional right to abortion due to an incorrect interpretation of the liberties given through the fourteenth amendment and a so-called lack of historical tradition of abortions. Previously, the right to privacy interpreted in the constitution was used to justify the constitutional right to abortion. While Roe and Casey rely on previous court decisions that give us the right to contraceptives (Griswold v. Connecticut) and the right to interracial marriage (Loving v. Virginia), the majority opinion of Dobbs states previous decisions that rely on the fourteenth amendment will not be affected. The main difference between the cases being the moral question surrounding abortion and “potential life” in Roe and Casey.
Unfortunately, while the majority opinion stated precedents like Griswold will be protected, the concurring opinion by Justice Thomas causes concern. He agreed with the majority opinion that Dobbs should not cause concern for precedents that do not include abortion. But he follows up with a statement that suggests “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Currently, there is not a court case heading to the Supreme Court that would force these precedents to be reconsidered, but the concurring opinion confirms fears that other rights related to the fourteenth amendment and privacy are at risk.
NOTE: This post was originally published before the official release of the Dobbs v. Jackson Women’s Health Organization decision on June 24th, 2022.
The right to abortion relies heavily on the right to privacy, interpreted in the United States constitution through a series of Supreme Court decisions. The right to privacy expands beyond abortion and influences topics like same-sex marriage and contraceptive use. When Justice Alito’s draft opinion for Dobbs v. Jackson Women’s Health Organization was leaked at the beginning of May, the wording of the draft caused many to wonder what the extending effects on the right to privacy would be. Throughout this discussion, it is important to remember that Alito’s opinion is not considered the final draft. While it has been confirmed the draft is from the Supreme Court documents, it could be an early version. The official decision date is expected to be early June or late July.
First, a recap of the Dobbs v. Jackson Women’s Health Organization case. In 2018, Mississippi passed a ban on abortions after the 15th week of pregnancy. Exceptions are made for cases when the health of the mother is at risk. Jackson Women’s Health Organization is the only abortion provider in the state and filed a lawsuit challenging the law based on protections laid out in Roe v. Wade. The case was seen as an opportunity for the majority conservative Supreme Court to overturn Roe.
The protection of abortion rights in Roe came from a discourse on the right to privacy in previous court decisions. The right to privacy, although not written exclusively, is found in the first, third, fourth, fifth, ninth, and fourteenth amendments. Different justices prefer different amendments for privacy, but this is the complete list. The summary of the right to privacy discussion is in the opinions of Griswold v. Connecticut . The landmark decision in 1965 prevented states from regulating the contraceptive use of married couples because married couples were found to have the right to “marital privacy.”
The right to privacy is used in various ways and is discussed in cases regarding technology, sexual orientation, business practices, bodily autonomy, and the right to die. Because the Supreme Court has never overturned a case that provides an extension of rights, reproductive health advocates and others are worried about the consequences.
The original Roe decision heavily relies on the right to privacy found in the fourteenth amendment. Alito’s draft decision references the protection of liberty in the fourteenth amendment and states implicit rights, like the right to abortion, must be “deeply rooted in the nation’s history and tradition.” Alito asserts abortion is not included in the nation’s history and tradition as a majority of states had criminalized abortion when the fourteenth amendment was adopted. On the other hand, he argues that the right of fetal life is protected by the fourteenth amendment and, therefore, should be protected. Alito’s other reason for overturning Roe is that the original decision itself was “exceptionally weak” and has not settled the debate on abortion in the United States.
It is easy to see where the fear for other issues that fall into the “right to privacy” come from after reading Alito’s opinion. The opinion is pretty harsh and puts the court into uncharted territory with how many major debates are connected to the right to privacy. For example, the rights of LGBTQ+ people are connected with the right to privacy through the fourteenth amendment in Lawrence v. Texas, a case that eliminated state sodomy laws. Similar language about the fourteenth amendment is also stated in the Griswold decision. Although Alito stated in the draft decision of Dobbs the decision is limited only to the “right to abortion and no other right” and therefore would not effect decisions like Lawrence and Griswold, progressive advocates are doubtful the conservative-led court will be true to its word.
There really is no way to really know what is going to happen after the official Dobbs decision is released but advocates are gearing up for a tough battle for reproductive rights and bodily autonomy. Griswold was a defining moment in the history of reproductive health, and it is scary to think that our rights to bodily autonomy may be slipping away. Whichever way the court lands in its official decision of Dobbs, overturning Roe would be an unprecedented move putting basic rights at risk.