GHOSTS OF THE PAST: HOW THE DOBBS DECISION IMPERILS THOSE MOST IN NEED OF THE LAW’S PROTECTION

Author: Laura Schack, Associate Editor, Northern Kentucky Law Review

Section one of the Fourteenth Amendment reads “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[1]  The court in Dobbs v. Jackson Women’s Health Org. cites the Washington v. Glucksberg decision upholding a law prohibiting physician-assisted suicide as the basis for analysis of the Fourteenth Amendment Due Process Clause issue.[2]  In Glucksberg, the Supreme Court described the analysis of substantive due process rights, stating that the Due Process Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition…and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.”[3]  Where such a fundamental right exists, the opinion asserts that the government may not infringe on this interest at all unless such infringement is narrowly tailored to serve a “compelling state interest.”[4]  Both Dobbs and Glucksberg cited numerous laws dating back to treatises by thirteenth-century English judge, Henry de Bracton to support the notion that the right to abortion and physician-assisted suicide for the terminally ill, respectively, are not deeply rooted in history and tradition.[5] [6]  The court could have achieved the same outcome by holding that there is a compelling state interest in regulating abortion.

The Supreme Court’s interpretation of the Due Process Clause in Dobbs imperils those who have historically faced discrimination.  By overturning almost half a century of precedent based on the assertion that rights not specifically enumerated in the Constitution must be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty”[7] the court placed every Fourteen Amendment decision protecting those who have historically faced oppression at risk.  This interpretation and application of the Due Process Clause has seismic implications for our most personal and intimate decisions.  It determines whether the government can limit whom you may marry[8], whether you may use contraceptives[9], with whom you may have sex[10], whether you may send your child to a private school[11] and whom you may live with[12].  It’s worth examining the Court’s application of the rule in Dobbs relative to that of other landmark Fourteenth Amendment cases.

Many Fourteenth Amendment decisions represent a reversal of history and tradition.  For example, in Lawrence v. Texas, the Supreme Court struck down a Texas sodomy law noting “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”[13]  This decision represented a stark reversal from historical support for laws criminalizing homosexuality.   Until 1961, all 50 U.S. states outlawed sodomy.[14]  Similarly, in Griswold v. Connecticut, the Court reasoned that rights enumerated in the Constitution have penumbras that emanate from those rights.[15]  For example, “the freedom to associate and privacy in one’s associations” were deemed a natural extension of the First Amendment.[16] Based on this reasoning, the Court concluded that a Connecticut law forbidding the use of contraceptives was unconstitutional because it “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.”[17]  Like homosexuality, the use of contraceptives had long been illegal in the U.S.[18]  Writing for the majority in Lawrence, Justice Anthony Kennedy eloquently observed that “those who drew and ratified the Due Process Clause of the…Fourteenth Amendment…knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”[19] 

 Justice Alito defended his decision to disregard recent precedent, turning again to Glucksberg where Justice Rhenquist cautioned restraint “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”[20]  Yet in dicta, he attempts to distinguish the facts of Dobbs from those of cases involving contraception and same-sex relationships because Dobbs involves “potential life.”[21]  The court could have arrived at the same result by characterizing protection of “potential life” as a compelling state interest as permissible under the Glucksberg analysis.  Such a decision would be binding precedent rather than dicta and would not provide an avenue to revisit hard won victories of those who have historically found themselves on the wrong side of laws once thought necessary and proper.

[1] U.S. Const. amend. IV, §1.

[2] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).

[3] Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

[4] Id. at 721.

[5] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2249 (2022).

[6] Washington v. Glucksberg, 521 U.S. 702, 711 (1997).

[7] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2242 (2022).

[8] Obergefell v. Hodges, 576 U.S. 644 (2015).

[9] Griswold v. Connecticut, 381 U.S. 479 (1965).

[10] Lawrence v. Texas, 539 U.S. 558 (2003).

[11] Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).

[12] Moore v. E. Cleveland, 431 U.S. 494 (1977).

[13] Lawrence v. Texas, 539 U.S. 558, 567 (2003).

[14] Lawrence v. Texas, 539 U.S. 596 (2003) (Scalia, J., dissenting).

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Id.

[17] Id. at 485.

[18] 18 U.S.C §1462.

[19] Lawrence v. Texas, 539 U.S. 596, 578-9 (2003).

[20] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2247-8 (2022).

[21] Id. at 2277-8.