The Supreme Court’s June reversal of Roe v. Wade in Dobbs v. Jackson Women's Health Organization could mightily influence the coming midterm elections. Many Democrats hope so. To help make their dreams come true, Democrats talk of Dobbs in apocalyptic terms. They say that Dobbs’s reasoning will erase the landmark cases that made contraception, sodomy, and same-sex marriage constitutional rights, namely: Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges.
Is any orgasm safe from these meddlesome jurists? To mark the political divide in bold, in July House leaders staged a vote on the “Respect for Marriage Act.” It would enshrine same-sex civil marriage in federal statutory law. Every House Democrat voted for it. Three other Democratic senators have introduced a “Right to Contraception Act” that would “codify” the constitutional right first recognized in Griswold. “A stolen Supreme Court majority has stolen the right to abortion care, and they are just getting started,” said co-author Massachusetts Senator Ed Markey. Thirty Democrats are co-sponsoring the bill. So far no one has introduced a bill denominated by a “right to sodomy.” But the substance of such a proposal is no doubt included in the measures on offer that advance the LGBTQ agenda.
Is all this just scaremongering? Or is there a realistic prospect that the Court will overrule, or at least significantly modify, its holdings in Griswold, Lawrence, and Obergefell?
One thing is for sure: Nowhere in Dobbs is there even a whiff of outright prohibition—of abortion, contraception, sodomy, or same-sex “marriage.” Dobbs said that the “permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Mississippi could ban abortion and California could celebrate it. In a concurring opinion, Justice Kavanaugh wrote that the decision “does not outlaw” abortion. “On the contrary,” it “properly leaves the question . . . for the people and their elected representatives.”
Any decision overruling, say Lawrence, would surely do the same: The existing constitutional right to sodomy would give way to fifty legislatures’ discretion. And then what? The few surviving laws against sodomy were already dead letters when the Supreme Court christened it a constitutional right in 2003. The same was true about contraception when Griswold came down in 1965. How many states would outlaw same-sex marriage were they able to do so is anyone’s guess. (My guess: not many.)
Justice Alito wrote for the Dobbs Court: “the dissent suggests that our decision calls into question Griswold, Eisenstadt [another contraception case], Lawrence, and Obergefell . . . But we have stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’” Alito concluded that it is “hard to see how we could be clearer.” Justice Thomas joined the majority opinion. In his solo concurrence he wrote: “I agree that ‘nothing in [the court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’” Kavanaugh wrote that Dobbs “does not mean the overruling” of Griswold, et al., “and does not threaten or cast doubt on those precedents.” Chief Justice Roberts would not even overrule Roe.
So there you have it. Six justices maintain that Griswold, Lawrence, and Obergefell are safe, or—to put it most precisely—no less safe the day after Dobbs was decided than the day before. The other three—Breyer, Sotomayor, Kagan—would sooner drink arsenic than disturb those holdings.
But there are two more pieces of evidence to consider before concluding the investigation. Exhibit A is Justice Thomas’s declaration of war. In the future, he wrote in his concurring opinion, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” In Thomas’s view, the “legal fiction” of substantive due process is not only an “oxymoron,” it is also “particularly dangerous,” causing “immeasurable harm.” He cited Roe and Dred Scott. The Court has a “duty to ‘correct the error’ established in those precedents.”
Exhibit B is just as bracing. The Dobbs dissenters wrote that “The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history.’” Dobbs is indeed noteworthy for its reliance upon the fact that, at about the time the Fourteenth Amendment was ratified, abortion was a crime in three-quarters of the states. The dissenters then observed that the “same could be said, though, of most of the rights the majority claims it is not tampering with,” notably including a right to contraception for which, before the mid-twentieth century, “there was no support in American law.” So, too, for sodomy and same-sex “marriage.”
The dissenters are right about the comparison (“same could be said”) but wrong about the premise (“lone rationale”). The Dobbs Court plainly said that a second factor, one wholly non-historical, was essential to its holding: “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'” The Dobbs Court emphasized repeatedly that this moral distinction between Roe and the other cases was decisive.
The Dobbs dissenters ended their misadventure with a common debater’s trick: Win the argument by declaring confidently that your opponent has just two options, neither tenable. “One of two things must be true,” they wrote. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
For the dissenters, Roe shares one essential feature with Griswold, Lawrence, and Obergefell—namely, the dearth of historical support for the constitutional right claimed in the case. So far considered, if one goes down, the others would, logically speaking, fall like dominos. But considered further, Roe stands starkly, incomparably alone. In 1973 the Supreme Court put beyond the reach of ordinary legislative protection the lives of every unborn child in the country. So far 63 million of them have been killed. This epoch-defining moral catastrophe is, the Dobbs Court maintained, sui generis. Just so.
Now, Dobbs's silence about whether the unborn count as constitutional “persons” deserves criticism. But the only coherent reading of the majority opinion is that abortion kills a living human individual. The beam is in the Democrats’ and the dissenters’ eyes. Roe’s tiny victims are invisible to them. They hold and want us to believe that abortion is just another form of contraception.
Only Justice Thomas would overrule Griswold, Lawrence, and Obergefell. None of the others is compelled by force of reasoning from past opinions or by stated resolve to reverse those cases or even to reconsider them. And they will not do so anytime soon—though I wish it were otherwise.
Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.
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Image by Ted Eytan licensed via Creative Commons. Image cropped.