Restrictions on abortions set precedent for restrictions of other rights and freedoms

Full Answer Section

          Historically, the right to abortion was rooted in a broader "right to privacy," which the Supreme Court had gradually established through a series of landmark cases. This right was not explicitly mentioned in the Constitution but was inferred from the "penumbras" (shadows) formed by various amendments (e.g., the First, Third, Fourth, Fifth, and Ninth Amendments, as argued in Griswold v. Connecticut). Later cases, particularly Roe, situated this right within the Fourteenth Amendment's Due Process Clause, which states that no state shall "deprive any person of life, liberty, or property, without due process of law." Substantive due process interprets this clause to mean that the government cannot infringe on certain fundamental liberties, even if the procedures used are fair, unless there is a compelling state interest. The Dobbs decision explicitly rejected the notion that the right to abortion is deeply rooted in the nation's history and tradition, which was a key test for identifying fundamental unenumerated rights under substantive due process. This rejection of historical grounding for a previously recognized right creates a precedent that could be applied to other rights similarly grounded in this judicial interpretation rather than explicit constitutional text. Here are some of the rights that may be in danger, and why:

1. Right to Contraception:
   • In Danger Because: The right to contraception was established in Griswold v. Connecticut (1965) for married couples and extended to unmarried individuals in Eisenstadt v. Baird (1972). These rulings, like Roe, were based on the right to privacy under substantive due process. Justice Clarence Thomas, in his concurring opinion in Dobbs, explicitly called for the Court to reconsider Griswold and Eisenstadt, arguing they were based on flawed legal reasoning.
   • Why: If the Court applies the Dobbs reasoning that a right must be "deeply rooted in the Nation's history and tradition" to survive scrutiny, the right to contraception could be vulnerable. Contraceptives were historically illegal in many states, and public acceptance of birth control is a relatively modern phenomenon. Overturning Griswold would allow states to ban or restrict access to various forms of contraception, including condoms, birth control pills, and IUDs, severely impacting individuals' abilities to plan their families and control their reproductive lives.
2. Right to Same-Sex Intimacy (Sodomy Laws):
   • In Danger Because: The right for consenting adults to engage in same-sex sexual activity was affirmed in Lawrence v. Texas (2003), which struck down state sodomy laws. This decision was explicitly based on the Due Process Clause's protection of liberty and privacy, building upon the foundations laid by Griswold and the concept of personal autonomy. Justice Thomas also directly listed Lawrence as a case that should be reconsidered in his Dobbs concurrence.
   • Why: Lawrence overturned Bowers v. Hardwick (1986), which had upheld sodomy laws. If the Dobbs court is willing to revisit and overturn precedents, especially those relying on substantive due process and privacy without explicit historical grounding, states could potentially re-criminalize same-sex sexual acts. This would be a significant step backward for LGBTQ+ rights and personal liberty.
3. Right to Same-Sex Marriage:
   • In Danger Because: The landmark case of Obergefell v. Hodges (2015) legalized same-sex marriage nationwide, explicitly grounding this right in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. While Obergefell also relied on the principle of individual autonomy and the fundamental right to marry, its connection to the line of privacy cases, particularly Lawrence, makes it potentially vulnerable. Justice Thomas, again, included Obergefell in his list of cases to reconsider.
   • Why: If the Court were to adopt a more originalist interpretation that limits fundamental rights to only those explicitly enumerated or historically acknowledged, the relatively recent recognition of same-sex marriage could be challenged. While the Respect for Marriage Act (2022) now codifies federal recognition of same-sex and interracial marriages, it doesn't prevent states from trying to ban such marriages, relying on the Dobbs reasoning to challenge Obergefell's constitutional basis. This could lead to a patchwork of laws and immense uncertainty for millions of married couples.

In summary, the danger stems from the Supreme Court's shift away from a broad interpretation of substantive due process as a protector of unenumerated rights that are "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition" (as Dobbs redefined the latter). By narrowing the scope of fundamental rights and emphasizing only those explicitly written or historically accepted, the Dobbs decision has opened the door for challenges to rights related to personal autonomy, bodily integrity, and intimate relationships that have been protected for decades. The reasoning creates a legal precedent that could dismantle a wide range of personal freedoms previously taken for granted. References (assigned readings, lectures, or videos are illustrative, as I don't have access to your specific course materials):

• Key Concept: Substantive Due Process / Unenumerated Rights. This legal doctrine, derived from the Fifth and Fourteenth Amendments, protects certain fundamental liberties from government interference, even if those liberties aren't explicitly listed in the Constitution. The Dobbs decision narrowed the application of this doctrine for reproductive rights, causing concern for other rights previously protected under its umbrella.
• Case Reference 1: Griswold v. Connecticut (1965). This foundational case established a constitutional right to privacy, albeit for married couples, in the context of contraception. Its reasoning, relying on "penumbras" of other constitutional amendments, laid critical groundwork for Roe v. Wade and other privacy-based rights. The Dobbs ruling directly questioned the lineage of Roe back to Griswold.
• Case Reference 2: Lawrence v. Texas (2003). This case explicitly affirmed the right to engage in consensual same-sex sexual activity, striking down sodomy laws based on the Due Process Clause's protection of liberty. Its reliance on personal autonomy and privacy connects it directly to the legal lineage that Dobbs undermined. The explicit call by Justice Thomas to revisit Lawrence (and Griswold and Obergefell) highlights its direct vulnerability.

Sample Answer

          The recent restrictions on abortion access in the United States, particularly the overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization (2022), have ignited widespread concern that other fundamental rights and freedoms, previously considered settled, are now vulnerable. The core of this concern lies in the legal reasoning employed by the Supreme Court in Dobbs, which abandoned the substantive due process framework that had long protected unenumerated rights – rights not explicitly listed in the Constitution but understood to be essential to liberty.