Opinion | Dobbs ruling endangers right to privacy

By Nick Johnson, Senior Columnist

Recently, a 5-4 conservative majority in the Supreme Court overturned the 1973 Roe v. Wade decision that legalized abortion at the federal level. In so doing, the Dobbs v. Jackson ruling has tossed nearly 50 years of legal precedent to the wind and stripped a woman’s constitutional right to an abortion. The implications of this decision on a woman’s ability to seek abortion are devastating and must not be minimized in any capacity. 

However, the American people must be aware that the implications of Dobbs reach even farther than the impact on abortion access — and brace for more previously unthinkable decisions from the high court.

The Supreme Court was able to legalize abortion at the federal level through Roe by interpreting the Equal Protection Clause of the 14th Amendment to protect a “right to privacy,” which has since been a keystone unenumerated right. To clarify: unenumerated rights are those not explicitly listed in the Constitution which SCOTUS may identify and protect through a principle of constitutional interpretation known as substantive due process.

The Roe decision was the genesis of the right to privacy and it has just been wholly overturned — despite Justice Samuel Alito’s assurances, this should put everyone on alert.

Justice Alito’s majority opinion explicitly stipulates that the overturning of Roe has no effect on previous cases that were decided using the right to privacy argument, saying, “(W)e emphasize that our decision concerns the constitutional right to abortion and no other right.”

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    While Alito may well be asserting this claim sincerely at this point in time, no one should take it at face value.

    Consider Alito’s assertion from a legal standpoint. It would patently be foolish to presume that any SCOTUS case previously decided on the basis of a precedent that has just been unequivocally overturned will remain safe for much longer. Thus, three such cases find themselves jeopardized: Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.

    These landmark cases legalized contraceptives, homosexual intercourse and same-sex marriage, respectively. The reasoning for all three decisions was grounded in Roe’s right to privacy.

    In fact, the liberal bloc on the high court — comprised of Justices Breyer, Sotomayor and Kagan — echoes this concern in its dissent. They opine, “So if the majority is right in its legal analysis, all those decisions were wrong … And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten — does not even ‘undermine’ — any number of other constitutional rights.”

    As if the reasonable concern for the future of cases that were decided using a now-overturned precedent were not enough, Justice Clarence Thomas offers a harrowing suggestion in his concurring opinion. Thomas writes, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.”

    Voices on the right have already rushed to downplay Thomas’ concurrence and the significance of the majority opinion’s implications on other privacy-related cases, using varying arguments. 

    Many highlight how Thomas is the only justice who posited that these landmark decisions should be called into scrutiny. Some claim that other privacy-related decisions are more likely to pass the “original intent” test the conservative justices deemed Roe to have failed, while also arguing “reliance interest” issues are present in these other cases but not in Roe — i.e., the hundreds of thousands of same-sex marriage contracts protected by Obergefell.

    The summation of such counterarguments is essentially, “Roe is different from other privacy rulings because it deals with abortion, so no need to worry about anything else.” 

    Despite the arguments espoused by the right to minimize the issue, the American public must remain wary of the promise that previous privacy-related cases are in no danger — especially when looking at the conservative justices’ track records regarding such cases and the upholding of precedent.

    Justices Roberts, Alito and Thomas are the only conservative justices remaining on the Court who were present when Obergefell was decided — they all dissented. Thomas was around for Lawrence, in which he also dissented.

    In their confirmation hearings, Justice Kavanaugh referred to Roe as an “important precedent” and Justice Barrett said she would “follow the law of stare decisis” if Roe came before the Court.

    Why, then, should anyone trust the Court majority when it claims that other privacy-related cases are safe as can be? The answer is simple: They shouldn’t.


    Nick is a senior in LAS.

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