Analysis

Dobbs Casts Shadow On Gay Rights, Birth Control

As other conservative U.S. Supreme Court justices sought to blunt a political firestorm by emphasizing that their decision to overturn women's constitutional abortion rights on Friday was not an attack on other rights, like those protecting birth control and same-sex couples, Justice Clarence Thomas made it clear that the door should be wide open.

In his concurring opinion, Justice Thomas repeated an argument he has raised in other cases: that the court should not rely on so-called substantive due process to protect rights not explicitly mentioned in the Constitution. The most senior associate justice urged his colleagues to use the same doctrine to scrutinize a host of other rights that the high court has recognized in recent decades.

"I agree that '[n]othing in [the court's] opinion should be understood to cast doubt on precedents that do not concern abortion,'" Justice Thomas wrote in his concurring opinion. "For that reason, in future cases, we should reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell" — cases in which the court respectively recognized constitutional rights to contraception, same-sex intimacy and same-sex marriage.

Rights like these may be unlikely to survive a legal test that the high court's conservative majority used to reach its opinion overturning Roe v. Wade on Friday, finding abortion was not mentioned in the Constitution and did not have "deep roots" in U.S. history and tradition, scholars and advocates said.

Justice Thomas was alone in suggesting that other rights may also be on the constitutional chopping block, but academics who study the high court said the majority's reasoning could easily apply to other precedential decisions.

"He's just telling the truth, where the others were trying to limit the damage," said Lawrence Gostin, a Georgetown Law professor who directs the O'Neill Institute for National and Global Health Law. "The Supreme Court realizes how bitterly controversial this is."

The case, Dobbs v. Jackson Women's Health Organization , was unusually problematic for the high court. A draft of the majority opinion was leaked and published by Politico in May, prompting protests outside of justices' homes. An armed man was arrested near the home of Justice Brett Kavanaugh, reportedly intent on killing the justice over the leaked draft.

In his concurring opinion on Friday, Justice Kavanaugh wrote that the court did not intend to tamper with its previous decisions that recognized rights to same-sex marriage, interracial marriage or contraception. "I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents," he wrote.

Those words were not convincing to Cary Franklin, faculty director of the UCLA Law Center on Reproductive Health, Law and Policy.

"I would not take that to the bank, and here's why: [The opinion] articulates a doctrinal test for figuring out what liberty rights are that would absolutely undermine its decisions in those other cases," she said.

The test considers whether a right is mentioned or implied in the Constitution or "deeply rooted in this nation's history and tradition," though the majority in Dobbs did not say how old a law or practice must be in order to be considered so.

Abortion, the majority concluded, was not.

"Well, that is even more true of same-sex marriage, for instance," Franklin said. "Has the right of two people of the same sex to marry one another been protected throughout American history, and is it deeply rooted in our legal tradition? No, it is not."

Abortion had no support in the nation's laws until shortly before the court's 1973 decision in Roe v. Wade, the high court's majority wrote in Dobbs. The right to buy and use contraception was deemed constitutionally protected only eight years earlier in Griswold v. Connecticut . Same-sex marriage, meanwhile, has only been a constitutionally protected right since 2015, when the high court struck down state bans in the case Obergefell v. Hodges .

Robert Weissman, president of the nonprofit consumer advocacy group Public Citizen, said the opinion has troubling implications for numerous rights.

"Rights that were not recognized In 1787 or 1870 are very vulnerable under this framework," he said. "And the majority decision says, 'No, abortion is separate. It's different.' But there's no articulable principle about why it is."

Conservative legal scholars supportive of the Dobbs decision, however, said they did not believe it likely that the high court would begin dismantling constitutionally protected rights.

Josh Blackman, a law professor at the South Texas College of Law and a member of the Federalist Society, said that millions of people are married because of the Obergefell decision, and that, unlike abortion, there is no nationwide movement to eliminate same-sex marriages.

"There has not been any real litigation on the issue [of same-sex marriage], and the courts are able to administer Obergefell," he wrote in an email.

On the other hand, the right to abortion as outlined by prior high court decisions — Roe v. Wade and Planned Parenthood v. Casey — has been legally problematic, Blackman said. Courts have struggled to know whether a law imposes an "undue burden" on access to a pre-viability abortion, he added.

The Dobbs decision, however, has proven to be a partisan shock to a nation that has popular support for at least limited access to abortion.

Gostin, the Georgetown Law professor, said the opinion may be the most damaging in history to the high court's legitimacy.

"It's ruinous not just because it overturns a half-century of precedent, and robs women of bodily integrity that they thought that they had their whole life," he said. "But it's also ruinous because it clearly violates the nation's sense of the justices as being impartial. No one's going to think that the justices are impartial arbiters of the law after this decision."

Dobbs came on the heels of another Supreme Court ruling that may have been considered explosive during any other term. On Thursday, the court struck down firearm carry restrictions in New York, expanding the Second Amendment right to bear arms outside the home.

The high court's willingness to hand down highly partisan rulings in rapid succession certainly sends a message, said UCLA Law's Franklin.

"It is a very encouraging sign for anti-LGBT forces to see the adoption of this test, and to see a court that's very receptive to conservative activism, along a number of fronts," she said. "If I were reading the tea leaves and I were someone who wanted to suppress LGBT rights, I would certainly test that out, because this seems like a promising sign."

–Additional reporting by Jimmy Hoover. Editing by Kelly Duncan and Orlando Lorenzo.

Update: This story has been updated with more information and analysis about the decision.


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