Earthquakes are rarely predictable, but this one was. May's leaked draft of the Supreme Court's decision in Dobbs v. Jackson Women’s Health warned us of what was to come. While the language of the court’s decision may have softened, the punchline is still the same: A woman’s ability to obtain an abortion is no longer protected under the Constitution. This means that it is left to lawmakers in each state to decide if they want to make access to abortion impossible or relatively easy. Let’s be clear: State bans on abortions are now constitutional.
The court’s decision in Dobbs doesn’t end the legal battles over abortion rights. Far from it. First, we will see an epic battle between blue states, such as California, that will want to ensure that not only their own residents can get abortions, but women from other states as well. On the flip side, red states, such as Missouri, will not only ban abortions within their borders, but will see if they can reach outside their boundaries to prevent their residents from traveling out of state to get abortions. Second, we will see a fight between the federal government, which allows health care providers to prescribe abortion pills without in-person appointments, and red states that are trying to ban such prescriptions.
One of the main battles between the federal government and the states will be over abortion pills, which are used in more than half of abortions in this country. The Food and Drug Administration allows healthcare providers to prescribe abortion pills without in-person appointments, but some states are attempting to ban the mailing or prescription of abortion pills in the state.
We will see enormous pressure on President Joe Biden to “do something” in the aftermath of this decision. The problem is that he has limited options. He could issue an executive order providing for abortion services on federal land, but when and if there is a Republican president and a Republican attorney general, we could potentially see federal prosecutors indict abortion providers who performed abortions on federal land. In addition, those abortion providers could potentially lose their medical licenses depending on the state law where they are licensed. Biden could also issue an executive order providing for more federal funds for women to travel to states that provide abortions and for providers in those states. The problem here is that the Hyde Amendment severely restricts the ability of the federal government to use funds for abortions. Should Biden attempt to take that path, there’s sure to be a legal fight over that as well.
While those are the primary legal battle lines we can expect with respect to abortion rights, we also have to ask what the reasoning and conclusion of Dobbs mean for our other constitutional rights. Based on the reasoning in Dobbs, a whole host of other constitutionally protected rights including same-sex marriage, interracial marriage and even the ability to obtain contraception could now be on the chopping block.
The majority’s conclusion in Dobbs that the right to an abortion is not protected under the Constitution rests on the fact that abortion is an unenumerated, or unwritten, right. And, of course, this is true. While some rights, such as the First Amendment’s freedom of speech and freedom of religion, are written in the text of the Constitution, others are not.
We, in fact, have a long constitutional tradition of protecting rights that are not specifically listed in the Constitution. For instance, back in 1965 in a famous case called Griswold, the Supreme Court concluded that the Constitution includes protection for an unwritten right to privacy and that this right to privacy allows married couples to obtain contraception. The Griswold court relied on a number of different constitutional provisions, including the 14th Amendment Due Process clause prohibiting states from depriving people of “life, liberty, or property, without due process of the law.” Seven years later, in 1972, relying on the Griswold decision, the court found that unmarried couples also have the right to contraception. This is the legal landscape in which the court made its famous, and now overturned, decision in Roe v. Wade. The court, again relying on that Griswold decision, concluded that the right to privacy includes the right to end a pregnancy.
But the court’s protection of unwritten rights isn’t confined to the ability to obtain contraception. The court has also held that the right to engage in intimate relations is a protected liberty under the 14th Amendment’s Due Process clause. This conclusion came in the court’s landmark decision in 2003 in Lawrence v. Texas, where the court invalidated a Texas law which criminalized sodomy.
For more than half a century, the court has recognized that the ability to marry the partner of one’s choosing is, in some form, protected by the Constitution. Fifty-five years ago, in 1967, a majority of the court concluded that states cannot ban interracial marriage. In that case, Loving v. Virginia, the court relied in part on the 14th Amendment’s Due Process clause to conclude that the freedom to marry is a protected “liberty” under that clause. Fast-forward to 2015 when the court, relying on Loving, held that this right to marry includes the right of same-sex couples to marry.
All of these cases, those protecting intimate conduct, the use of contraception, and the ability to marry the partner of your choice, all indicate that not every constitutionally protected right is specifically written in the Constitution. The text of the Constitution is our starting point, but it doesn’t answer the all-important question: What do we mean when we use a word like “liberty?” By design, part of the court’s job is to determine which rights fit under that umbrella.
If the problem with protecting the right to an abortion is that it is not written in the Constitution, then all of our other unwritten rights can be put on the chopping block, too.