Now Roe. What's Next?
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On Friday, as you may have heard, the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion. The justices upheld a Mississippi law banning most abortions after fifteen weeks of pregnancy and overruled two longstanding precedents, Roe v. Wade and Planned Parenthood v. Casey, which together protected the right to get an abortion before fetal viability, a point around twenty-three weeks.
For supporters of abortion rights—and for women who will need abortions in states that will now restrict access to the procedure—this was bad enough. But the arguments in Justice Samuel Alito’s opinion for the Court, plus a separate concurrence by Justice Clarence Thomas, have many observers worried that other rights could soon be in jeopardy, including rights to contraception, interracial marriage, and same-sex marriage.
I believe these fears are overblown. But understanding why requires going beyond the usual talking points and digging into doctrine.
Writing for five justices—all the conservatives except Chief Justice John Roberts, who wrote in a separate opinion that he would have upheld the Mississippi law but preserved Roe and Casey—Justice Alito argued that “[t]he Constitution makes no reference to abortion,” nor is abortion otherwise protected under the Fourteenth Amendment as an unmentioned right that is “deeply rooted in this Nation’s history and tradition.” This logic calls into question a whole host of rights that were not recognized in 1868, when the Fourteenth Amendment was ratified.
In their dissent, the three liberal justices wrote that “no one should be confident that this majority is done with its work.” If the justices in the majority truly believe their reasoning, the dissenters argued, then “all rights that have no history stretching back to the mid-19th century are insecure.”
But as Justice Oliver Wendell Holmes famously observed in 1881, “The life of the law has not been logic: it has been experience.” For better or worse, many factors besides pure logic determine the development of the law—including, Justice Holmes wrote, “the prejudices which judges share with their fellow-men,” or judges’ own personal feelings. And when it comes to further cutting back on rights, I don’t think the conservative justices are feeling it.
Why? They basically said as much in Dobbs: “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” If the conservative justices plan to roll back other rights in the near future, they easily could have left this language out—but its presence suggests the conservatives have little appetite for fights beyond abortion.
Why isn’t there the same hunger on the right to ban, say, interracial or same-sex marriage that there is for banning abortion? As Justice Alito wrote in Dobbs, the critical difference between abortion and most other rights is that abortion destroys “potential life” or “the life of an ‘unborn human being.’” Or as pro-life advocate Karen Swallow Prior wrote in the New York Times on Friday, she and her fellow pro-lifers believe “that abortion unjustly ends the life of a being that is fully human”—which can’t be said of almost any other right.
In other words, while social conservatives might not view my marriage to another man as a real marriage, they don’t view me and my husband as murderers. In the eyes of social conservatives, abortion is uniquely evil—and Roe, by enshrining that perceived evil in constitutional law, is a uniquely bad decision. According to UC Berkeley law professor Orin Kerr in a thoughtful Twitter thread, “Within the conservative legal movement, Roe is thought to stand pretty much alone.”
For decades, Republican political candidates, including presidential candidates, ran on getting Roe overturned. For just as long, a slew of pro-life organizations devoted themselves to getting Roe overruled. I’m unaware of presidential candidates campaigning on reversing Obergefell v. Hodges, the 2015 decision that recognized the right to same-sex marriage, or of organizations trying to revisit Griswold v. Connecticut, the 1965 decision that recognized the right of married persons to buy and use contraception.
Why is this? Again, abortion is different. As noted by Professor Kerr, the American public has reached a consensus on other issues that it has never reached on abortion. Compare support for same-sex marriage, which increased dramatically from 27 percent in 1996 to 70 percent today, with public opinion on abortion, which has remained much more stable over the same time period. In 1996, 56 percent of people considered themselves pro-choice and 33 percent considered themselves pro-life, and in 2022, 55 percent of people consider themselves pro-choice and 39 percent consider themselves pro-life. Abortion is an issue where there’s no national consensus—and no sign of consensus emerging anytime soon.
Imagine that same-sex marriage returned to the Court. While the general logic of Dobbs might support rejecting this right and overruling Obergefell, it’s a different issue than abortion. First, as noted by Justice Alito in Dobbs, same-sex marriage doesn’t involve any destruction of “potential life.” Second, same-sex marriage involves strong “reliance interests,” in terms of people organizing their lives and affairs “in reliance” on, or depending on, a given right. This is an important part of the stare decisis analysis, the decision about whether or not to stand by or overrule a precedent, and it’s why I think a majority of justices would stand by Obergefell, even if they might not have voted for it in the first instance. My guess, based on a statement issued two years ago, is that only two justices, Justices Alito and Thomas, would vote to overrule Obergefell today.
Speaking of Justice Thomas, let’s consider his concurrence in Dobbs, which has also gotten alarm bells ringing on the left. Going further than Justice Alito, Justice Thomas explicitly called on the Court to “reconsider” such cases as Griswold, Obergefell, and Lawrence v. Texas, which protects the right to engage in private, consensual sexual acts. Could it only be a matter of time before these rights are taken away?
I think it’s unlikely. First, because Justice Thomas wrote this in a separate concurrence, not in the controlling opinion of the Court, it represents only the views—the academic ramblings, really—of Justice Thomas. He’s fond of floating esoteric or controversial legal theories in solo concurrences, joined by none of his colleagues. And most of the time, they go nowhere. If he actually wants to get these cases “reconsidered,” he’ll need four other votes, which he almost certainly doesn’t have.
Second, contrary to the claims of many commentators, Justice Thomas wasn’t actually arguing for getting rid of all legal protection for contraception, same-sex marriage, and similar rights. Rather, he was calling for reconsidering the legal doctrine called “substantive due process,” which claims that the Constitution’s protection of “due process” doesn’t just guarantee proper “process” (like a fair trial), but also certain “substantive” rights not mentioned in the Constitution (like abortion). Many legal conservatives loathe substantive due process because they believe it gives unelected judges too much power to make up new rights.
But as Justice Thomas explained in his concurrence, if the Court were to heed his call to ditch substantive due process, the question would then become “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” So various rights currently protected under substantive due process might still be protected by the “privileges or immunities” doctrine, mentioned by Justice Thomas, or other doctrines or provisions not mentioned by him, such as the Equal Protection Clause.
Third, even if a Supreme Court precedent protecting a certain right gets overruled, the right doesn’t go away overnight; it just gets decided by other institutions, usually state legislatures or the U.S. Congress. As Justice Brett Kavanaugh wrote in his own Dobbs concurrence, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”
This is why I’m not as worried as many about the future implications of Dobbs, in terms of either Justice Alito’s opinion for the Court or Justice Thomas’s concurrence. Then again, I might be wrong—and it wouldn’t be the first time. In 2018 and again in 2021, I predicted that Roe would not be overruled. So much for that.
I just expressed skepticism toward Justice Thomas’s solo concurrences, which are often like the mutterings of your crazy uncle at Thanksgiving. You can safely ignore your crazy uncle—but you can’t ignore Justice Thomas, since every now and then, he turns out to be crazy prophetic.
In 1997, in a case called Printz v. United States, Justice Thomas wrote a solo concurrence suggesting that the Second Amendment protected an individual right to keep and bear arms. At the time, this was contrary to Supreme Court precedent, and his view was dismissed by many as kooky. But eleven years later, in D.C. v. Heller, Justice Thomas’s once-fringe view became the law of the land.
Then this past Thursday, in New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote for the Court in extending the reasoning of Heller, which focused on keeping guns for self-defense at home, to the carrying of firearms in public. So sometimes Justice Thomas’s improbable theories wind up getting enshrined in law, even if it takes a few years. And the current Court is far more conservative than it was when it decided Printz, perhaps making Thomas a better barometer today of where the Court might go in the future.
To those worried about post-Dobbs America: don’t panic, but don’t let down your guard. Go out there and win some elections—which is the only way to bring change to the Court, and to the country.
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