First Abortion, then What?: Analyzing the Implication of Dobbs for Other Due Process Cases

By: Iliana Garner

Edited By: Michael Crystal and Renan Dennig

The Dobbs v. Women’s Health Organization ruling sent a shockwave through the country, striking down a precedent that protected the right to an abortion for nearly 50 years. The right to an abortion was previously protected by Roe v. Wade, decided on Jan. 22, 1973, which ruled states may not regulate abortion decisions in the first trimester, and Planned Parenthood v. Casey, decided on June 29, 1992, which reaffirmed Roe. Under Roe, a woman's “right to privacy” in her abortion decision fell under the Due Process Clause of the Fourteenth Amendment. State laws that prohibit abortion during the first trimester of pregnancy violate this right. 

However, the court ruled in Dobbs that the constitution does not protect abortion as it is not explicitly mentioned nor considered an “ordained liberty.” [1] The case cleared the way for abortion to become criminalized or heavily restricted in at least 13 states. [2]

Besides removing protections for abortion, this case opens the door for other judicial precedents to be overturned. Access to contraception, decriminalization of same-sex intimacy, and the legalization of gay marriage are all backed in the Due Process Clause that came into question during Dobbs. In a concurrence given by Justice Kavanaugh, he clarified that rights being exercised in Griswold [contraception], Lawrence [intimate relationships], and Obergefell [same-sex marriage], “do not destroy a ‘potential life,’ but an abortion has that effect.” [3] However, Justice Thomas wrote in a separate concurrence that “the Due Process Clause at most guarantees the process. It does not, as the Court’s substantive due process cases suppose, forbi[d] the government to infringe certain “fundamental” liberty interests at all, no matter what process is provided.” [4] Under this interpretation of the Due Process Clause, the rights given by Griswold, Lawrence, and Obergefell are not safe. Rather, the Dobbs ruling is “merely the first volley in a much broader war,” writes Professor Sam Kamin. [5]

Justice Thomas is essentially attempting to reconsider these aforementioned substantive due process precedents, which is a principle in the constitution that allows the courts to prevent government interference with certain fundamental rights. For example, in Obergefell, the government determined that the right to marry someone of the same sex is a fundamental right or “liberty” that is not mentioned in the constitution, but should be protected from state encroachment. The central debate around substantive due process is around what liberties should be protected by the constitution. Does banning abortion impose an arbitrary restraint to a liberty which is needed to participate fully in a democratic society? [6] Does the same apply to gay marriage or contraception? 

The Respect for Marriage Act was signed into law in December 2022, which held that the federal and state governments must recognize the validity of same-sex and interracial marriages. However, this bill does not cement the legality of marriage forever. If the courts were to overturn Obergefell, state legislatures would have the power to prohibit same-sex marriages in their respective states. It would only require states to recognize marriages performed in other states or federally recognized marriages. [7] 

The Dobbs decision puts substantive due process at risk. The court offered an understanding of the Due Process Clause wherein substantive rights must be “vindicated by tradition and essential to ‘ordained liberty,’” writes Cass R. Sunstein of Harvard Law School. [8] This interpretation sides with due process traditionalism, which allows protection of rights only if they are rooted in the nation’s traditions. It ignores the role moral progress plays in constitutional interpretation. An approach narrowed by tradition would seem to eliminate other rights not explicitly listed in the constitution — including contraception and same-sex marriage. [9] Not treating the constitution as a living document limits progress and endangers many rights that we live with today. Abortion — a right that was protected by courts for 49 years – is gone. What rights will the court strike down next?

NOTES:

1. Dobbs v. Women’s Health Organization (U.S. 2022). 

2. The New York Times. “Tracking the States Where Abortion Is Now Banned.” The New York Times. The New York Times, May 24, 2022. https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html. 

3. Perley Masling, Sharon, Saghi Fattahian, Stephanie Schuster, Jonathan Zimmerman, and E. Pierce Blue. “Dobbs v. Jackson Women's Health: Implications for Employers and Employer Plan Sponsors.” – Publications | Morgan Lewis, June 24, 2022. https://www.morganlewis.com/pubs/2022/06/dobbs-v-jackson-womens-health-implications-for-employers-and-employer-plan-sponsors. 

4. Dobbs v. Women’s Health Organization (U.S. 2022). 

5. Kamin, Sam. “Katz and Dobbs: Imagining the Fourth Amendment without a Right to Privacy.” SSRN Electronic Journal, July 8, 2022. https://doi.org/10.2139/ssrn.4156992. 

6. Johnson, Richard. “Dobbs v. Jackson and the Revival of the States' Rights Constitution.” The Political Quarterly, October 5, 2022. https://doi.org/10.1111/1467-923x.13193. 

7. Radde, Kaitlyn. “What Does the Respect for Marriage Act Do? the Answer Will Vary by State.” NPR, NPR, 8 Dec. 2022, https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state. 

8. Sunstein, Cass R. “Dobbs and the Travails of Due Process Traditionalism.” SSRN Electronic Journal, 2022. https://doi.org/10.2139/ssrn.4145922. 

9. Tsai, Robert L. “ POV: What Rights Could Unravel Next, in Light of Draft Opinion by SCOTUS Overturning Roe v. Wade.” Scholarly Commons at Boston University School of Law, October 5, 2022. https://doi.org/https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=1153&context=shorter_works.

BIBLIOGRAPHY:

Perley Masling, Sharon, Saghi Fattahian, Stephanie Schuster, Jonathan Zimmerman, and E. Pierce Blue. “Dobbs v. Jackson Women's Health: Implications for Employers and Employer Plan Sponsors.” – Publications | Morgan Lewis, June 24, 2022. https://www.morganlewis.com/pubs/2022/06/dobbs-v-jackson-womens-health-implications-for-employers-and-employer-plan-sponsors. 

Arora, Kush. “Constitutional Due Process: Procedural and Substantive.” Maryland Criminal Lawyer, July 25, 2022. https://maryland-criminallawyer.com/constitutional-due-process/. 

“Dobbs v. Jackson Women's Health Organization.” Oyez. Accessed October 31, 2022. https://www.oyez.org/cases/2021/19-1392. 

Dobbs v. Women’s Health Organization (U.S. 2022). 

Johnson, Richard. “Dobbs v. Jackson and the Revival of the States' Rights Constitution.” The Political Quarterly, October 5, 2022. https://doi.org/10.1111/1467-923x.13193. 

Kamin, Sam. “Katz and Dobbs: Imagining the Fourth Amendment without a Right to Privacy.” SSRN Electronic Journal, July 8, 2022. https://doi.org/10.2139/ssrn.4156992. 

The New York Times. “Tracking the States Where Abortion Is Now Banned.” The New York Times. The New York Times, May 24, 2022. https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html. 

“Planned Parenthood of Southeastern Pennsylvania v. Casey.” Oyez. Accessed October 31, 2022. https://www.oyez.org/cases/1991/91-744. 

Radde, Kaitlyn. “What Does the Respect for Marriage Act Do? the Answer Will Vary by State.” NPR, NPR, 8 Dec. 2022, https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state. 

“Roe v. Wade.” Oyez. Accessed October 31, 2022. https://www.oyez.org/cases/1971/70-18. 

Strauss, Peter. “Due Process.” Legal Information Institute. Legal Information Institute, October 2022. https://www.law.cornell.edu/wex/due_process