The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health infuriated some but delighted others.
The opinion by Justice Samuel A. Alito Jr. overruling Roe v. Wade on June 24 is substantially the one that leaked to the public in May. In their final decision, six conservative justices led by Alito, for the first time, overruled a right established by the court almost 50 years ago: a woman’s right to decide whether she wants to carry her pregnancy to term.
The court has never in its history withdrawn a constitutional right. But it has now. And it will undoubtedly have wide-ranging consequences, despite Alito’s statement that his focus was only on abortion because it ended fetal life.
The future is bleak for many other rights we have taken for granted: freedom to move from one state to another, parental rights, personal choices, sexual conduct, marital choices, civil rights, and many others, if the court uses the Dobbs rationale to end them.
Dobbs should not have surprised anyone who even casually follows the court’s work. The trend began in February 2016, when Justice Antonin Scalia died. The Senate, then under the leadership of majority leader Mitch McConnell, declined to hold a hearing for President Obama’s nominee, Judge Merrick Garland. Too close to the 2016 election, McConnell argued, so let the American people decide. Eventually three conservative judges joined the court, all nominated by President Trump, including Amy Coney Barrett, who was confirmed just eight days before the 2020 presidential election.
And this comes at a time when the court’s approval rating is at a historic low level.
Some 26 states are now expected to ban or restrict abortion, some with no provision to save the life or preserve the health of the woman. Senate minority leader Mitch McConnell last month stated that if he became majority leader, he may promote a national ban on abortion, which would end the practice in all 50 states.
In Dobbs, Alito claimed that abortion was the sole focus of the court, but in his concurrence, Justice Clarence Thomas urged the court to overrule other substantive rights like privacy, contraception, adult same-sex sexual relations, and same-sex marriage. He argued that the modern court unconstitutionally discovered substantive rights in the 14th Amendment’s “liberty” component of the due process clause: It reads, “No state shall deprive any person of life, liberty, or property without due process of law” (emphasis added on the word “liberty”). No substantive right, he said, may be found there.
In law, procedural due process rights are different from substantive ones. Procedural due process is what must happen in a courtroom when people face criminal charges: They may not be deprived of life (receive the death sentence), freedom (sentenced to prison), or property (levied a fine) unless they possess the safeguards in the Bill of Rights: the right to counsel, the right to review evidence, the right to remain silent, the right to cross-examine witnesses, and so on.
Substantive rights are court-created phenomena that developed primarily in the 20th century. Alito wrote in Dobbs that if abortion is to stand as a substantive right, it must be “deeply rooted in this Nation’s history and tradition.” His decision means that he thinks it is not so rooted.
But neither are several other substantive rights that the court has discovered, like the following:
In 1867, the court ruled in Crandall v. Nevada that a person may freely move from one state to another without an impediment (Nevada required a $1 exit tax to leave the state). That right is not explicitly in the Constitution, nor is it deeply rooted in history and tradition, insofar as the nation was just 78 years old. If antiabortion states make it illegal for women to travel out of state for the procedure, Crandall may be overruled.
Another example: In 1923, the court held that students have a substantive right to learn a foreign language. Two years later, the court ruled that parents have a substantive right to decide whether they would send their children to private or public school. Neither one is explicitly in the Constitution. Nor are they necessarily rooted in our nation’s history and tradition.
In 1967, the court unanimously ruled that laws banning interracial marriage violated the Constitution as a substantive right. After Mildred and Richard Loving were married in Washington, D.C., they returned to Virginia, where miscegenation laws were in effect. She identified as African American; he was white. In 2013, the court cited Loving v. Virginia as a precedent in Obergefell v. Hodges, establishing a substantive right to same-sex marriage. The court may in the future declare that neither one of these rights — interracial or same-sex marriage — are rooted in the nation’s history and tradition.
Finally, civil rights laws, based as they are on Article I’s commerce clause, empowering Congress to regulate interstate commerce, may also be at risk. Nothing in Article I’s commerce clause addresses civil rights, especially public accommodations, or even desegregation of schools. The court may now overturn them as well. As a Senate candidate, Rand Paul (R-Ky.) once said that private business owners should be allowed to refuse service to whomever they wished.
All these and more are at risk, thanks to Dobbs. The American people may no longer enjoy many substantive rights, because, as Thomas said, they “lack any basis in the Constitution.”
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for over 40 years.