After Roe: A grim future for many of our rights

Edward Colley

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The court has never in its history withdrawn a constitutional right.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.


  1. C’mon Mr.Fruchtman you are needlessly scaring some.
    There is no indication that any of Thomas’ colleagues share his view on stare decisis or substantive due process,. Indeed, both Justice Alito’s majority opinion, and the concurring opinion by Justice Kavanaugh, expressly embrace the multi-factor stare decisis that Justice Thomas has long rejected. Dobbs provides no threat to decisions such as Griswold, Lawrence, or Obergefell. Decisions recognizing fundamental rights protected by the Due Process Clause will not be reconsidered, let alone overturned. I do not believe there are even four votes to petition the court in a case presenting such questions, let alone the five that would be necessary to overturn any of these cases. Fruchtman should tell us that in order to relax the hysterical.

    • andy– don’t worry about the “hysterical(s)”. They are already too busy worrying about CRT , antifa, BLM, George Soros ,the FBI, rising crime rates in “blue” cities, the loss of suburbs, stolen elections and most of all, Hunter Biden to care about losing some constitutional rights that would only affect people who aren’t white Christians .

      • One should do the research to determine if 5 of the conservative judges agree with Clarence Thomas narrow view of the substantive due process. They do not.

        • Ah, from the “do your own research” crowd, to confirm your already entrenched opinion. You haven’t the foggiest of what the conservative majority on the Supreme Court will say. But sway it they will.

          • Hess, they have told us but you arent bothered to read their writings. You and Keller and others just assume the worst. I am not going to do your work for you.

        • andy– just because 5 justices did not fully agree with Thomas’s opinion does not mean they are innocent. The constitutional right to abortion has been overturned
          If 6 people attempt to rob a bank and one of the robbers shoots and kills a security guard, they are all charged with murder. Even the person driving the getaway car that never went into the bank.
          Get it ?
          We have a word for that in English– Culpability

          • Analogical fallacy Keller. One is seriously thinking of robbing a bank but hasnt done it.(to use your weak metaphor)The other 5 have no interest in robbing a bank and have told the one considering they wont do it under any circumstance. No bank has been robbed. In 2020 I am sure you went into a bank with a mask on but didnt rob it.

          • andy– I’m really starting to worry about you. Do you think
            Thomas was the only justice who voted to overturn Roe ?
            That’s not how this happened– 6 justices voted to overturn Roe– 3 opposed that decision.
            What would you think if I said that the SCOTUS did not in fact issue a decision on this case ?
            Right– you would think I was having some sort of psychotic incident.
            You say you speak 4 languages– you should know what a metaphor is.
            I used a metaphor about people actually attempting to rob a bank, commit a murder and they all are charged, and you come back with a response that had nothing to do with what I said and talk about me going into a bank with a mask on 2 years ago . What ?????
            We know you are prone to staring truth in the face and denying it, but really– this one is over the top.
            My example did not use a scenario where no bank was robbed.
            Please – some people here are trying to have a rational discussion.

        • Andrew, using your analogy: “One is seriously thinking of robbing a bank but hasn’t done it. The other 5 have no interest in robbing a bank and have told the one considering they won’t do it under any circumstance.”

          The one robbed the bank. If the other five had no interest, they would have exited the car and taken a cab to the nearest malt shop. But those five stayed in the car, they went with the one to the bank. They were party to the robbery, excuses are rubbish, they are as guilty as the one.

          • andy– so are you trying to tell us in some cryptic way that the SCOTUS did not actually overturn Roe ?
            The Holocaust never happened ? Do you think the Nazi’s only talked about exterminating Jews?
            Nasa only talked about putting men on the moon ?
            George Bush only talked about invading Iraq ?
            Putin only talks about invading Ukraine ?
            I’m struggling to understand what you are trying to say.
            How about just coming clean with all of us liberals and tell us what you really want to say. Can you do that ? I’m asking politely here…
            It seems like you don’t believe that 6 justices voted to overturn Roe… They have only talked about it, and of course promised us that they never would.
            That’s what you appear to be saying.
            Is that the reality that you believe ?
            Of course, there is a grain of truth in what you are saying– All three of the justices appointed during the trump regime publicly stated , under oath , that they would not consider voting to overturn established law when specifically asked if they would vote to overturn Roe VS Wade.
            Of course they are conservatives, so they are entitled to lie under oath.
            Just last month Rep Louie Gohmert (r-Texas ) summed the conservative position up pretty well.
            “If you’re a Republican, you can’t even lie to Congress or lie to an FBI agent or they’re coming after you”

    • The three new conservative Justices lied and and said they would respect stare decisis when it came to Roe.

      Forgive me if I don’t believe a single word you just wrote.

      Also, why didn’t Justice Thomas say we should overturn Loving v Virginia? Might he have a personal vested interest in the matter?

      • Aron, not sure that they lied as much as they parsed words. They are lawyers after all. And are you so naive the believe that people don’t lie to get what they want? Every politician lies to us for their own political gain or for that of their party. As for the media, professional liars and manipulators. Except for the MV Times of course. What a country we could be if people told the truth, had morals/ethics respected those with different opinions and held those accountable who didn’t.

  2. Hard to make sense of this. In NJ for example you can have an abortion in the 9 month as the state does not recognize the unborn child as a person. However, if this same mother was carrying a child and was only a few weeks pregnant and was shot and killed the state would try the perpetrator with two homicides, one of the mother and one of the unborn child.

    When traveling in a restricted hi occupancy lane on a highway the unborn child counts as a person for the purpose of meeting the minimum requirement to travel in that lane.

    There have been countless cases of pregnant persons abusing illegal drugs who have been subsequently charged with child abuse of the unborn child. States even require their physicians to report the incident to authorities.

    My point is that our government has this issues so fouled up and they have proven that they are incompetent to fix it. There should be on standard for life and one standard for when one reaches the age of majority in this country.

  3. I am used to being censored here, but I am a bit disappointed about how many of my comments have been cancelled on this thread.
    I understand the rules after all–
    Thought I could (without naming any names ) point out that religious zealots from communist countries have a right to post ignorant comments about subjects they have no understanding of. And that is what has made America great for hundreds of years.
    I also thought I was within the bounds here to point out that there are millions of ignorant people in this country who are not intellectually capable of grasping a concept that requires more than a 3 or 4 word sound bite. Or a 30 second video clip from a fox “news” host.

    • Keller everyone knows you are talking about me. This religious zealot is a Soviet refugee, attended University of San Francisco, NYU Graduate School of Politics and Harvard Business school. He speaks several languages, has lived in 11 countries and visited 100. He was in Peace Corps Iran for 2 years and has managed multinational companies overseas and a Fortune 500 in the US. He has good understanding of the issues and millions of others agree with him.

      • Hello Andrew,
        Many of those in here in a twist about loss of rights, don’t seem have that same zeal when it comes to any weakening of First Amendment rights, or Second Amendment rights, or am I missing something?

        • What you have missed is that people have different opinions about what is Right.
          Is your opinion the only Right opinion?

          • If you are talking to me Hess—No,,,, my opinion is not the only right opinion. It is an opinion, but several people on this site dont allow opinions they dont agree with and trash the opiner. As for my being a religious zealot, I am an evangelical protestant pure and simple.

      • andy– so you say. Even if all your accomplishments are actually true, that does not in any way make your arguments valid.

          • andy- Interesting that a guy who has a reputation for posting things here that are not true thinks that somehow his money makes his arguments more valid than those of an “average carpenter”

    • Don, sorry to hear that you are being censored. I may not like or agree with everything you say but I always respect your right to say it. And you have actually opened my mind to some things along with making be a better debater. Our society needs stop being so overly sensitive. Enjoy your Fourth and thank you for your service.

      • Carl. Full disclosure here. George was courteous enough to take some time to send me a personal e mail explaining his decisions.
        He pointed out that I was not “censored” but he “moderated” my comment.
        I will agree with him that “censured” is too harsh a word for what he does.
        It is politically charged.
        So an apology here to George for that word.
        He also explained that since the only posted comment at the time was from andy, I was obviously calling him a name.
        So andy now owns it, as he freely admits he is a religious zealot.
        But I understand that George has to take everything into context, and by its very nature moderating a platform such as this will result in some arbitrary decisions.
        I want to make it clear that I respect George’s opinions and decisions, as I do most people here.
        If some here feel I am a bit too abrasive, or are offended by some of the things I say— well, don’t take it personally. It’s all part of the debate.
        I hope everyone has a safe and happy 4th of July holiday — even those who are currently rooting for SCOTUS and we all know which party in their attempts to “cancel” the freedoms of many people.
        Peace, love and Pasta

        • Keller you are drifting off point. We were talking about Clarence Thomas suggesting other changes after Roe and I simply said the other 5 would not support him. The discussion was not whether 6 judges overturned Roe. Indeed they did.

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