This is the final of three articles in this series. This part analyzes the potential that the constitutional right of privacy, in a variety of modern forms, may be at risk if the Supreme Court goes through with a draft decision to end the right to abortion.
A Supreme Court decision is something like a pond after a rock is tossed into it: the ripples flow outward. Constitutional law, for all the search for reliable or even fixed meanings, is truly dynamic, and one can never be entirely sure what will follow a ruling interpreting the basic document.
Is it possible, though, for a decision by the Court to settle something, and then insist that there will be no ripple effect elsewhere in the law?
In 2000, the Supreme Court tried to do exactly that. Its ruling in Bush v. Gore ended the constitutional fight over how to count the votes in Florida in the exceedingly close presidential contest between George W. Bush and Al Gore, sending Bush to the White House.
After finding that the somewhat peculiar voting-recount system in Florida violated the constitutional command that voters be treated equally, the majority opinion declared: “Our consideration is limited to the present circumstances.”
Today, however, at least four Justices of the Supreme Court have indicated that some of the reasoning used by the Court in the Bush v. Gore decision may mean that the Constitution gives state legislatures very wide freedom to decide who won a presidential election, regardless of how the people themselves have voted. That view may well have an impact on the outcome of the election in 2024.
But what does that have to do with a woman’s constitutional right to abortion – the topic of this series of three articles?
Justice Samuel A. Alito, Jr., has written a draft opinion for the Court that – if it becomes final – would overrule the Court’s two most important decisions creating a constitutional right to abortion. But the draft adds this: “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.”
The Court, of course, decides only one case at a time, but in trying to limit a ruling’s ripple effect, the Court perhaps takes too little account of the inventiveness of the legal mind.
Even before America learns whether the final decision in this Mississippi abortion case is going to emerge in the way the draft suggests, there is a lively debate in political and academic circles over how much – or how little — the Nation can count on Justice Alito’s assurance.
Already, conservative members of some state legislatures have begun talking about ways to expand the reach of the decision that may emerge in the abortion case. They seem uninhibited by the notion that there supposedly will be no ripple effects after the Court issues a final decision in the case of Dobbs v. Jackson Women’s Health Organization.
The principal reason that the coming ruling could have a significantly wider impact beyond abortion rights is the deep skepticism that the draft expresses about the constitutional right of privacy – the constitutional foundation of both the Roe and Casey precedents.
The Constitution nowhere mentions a right of privacy, and Justice Alito writes that “the Court has long been reluctant to recognize rights that are not mentioned in the Constitution.” Still, in a string of decisions going back at least to 1897, the Court has located that right in the word “liberty” in the Fourteenth Amendment. Here is what the Amendment says on the point: “No state shall…deprive any person of life, liberty, or property without due process of law.”
The Court long ago made clear that this guaranteed more than fair legal procedures; it also embraces some explicit individual rights against state and local government interference. The Court also has made clear that the same protection against the federal government comes within the word “liberty” in the Fifth Amendment’s Due Process Clause.
Justice Alito’s draft remarks that “ ‘Liberty’ is a capacious term….In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should have.”
His draft definitely was a signal that the Court’s current conservative bloc would not yield to that “human tendency” to expand the right of privacy. Moreover, conservative state legislatures may interpret the draft as a signal that the long process of expanding the right of privacy has come to an end and, indeed, may actually be narrowing.
History, of course, is to the contrary. With few periods of pause over many decades, the Court has used various definitions for the rights protected under the right of privacy within the promise of liberty. In a 1923 decision, for example, the Court said that liberty in the constitutional sense “denotes not only freedom from bodily restraint but also the right of the individual to contract, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
That expansive concept is clearly what the Supreme Court had in mind in the 1973 decision in Roe v. Wade, establishing a right to privacy that included the right to an abortion. But when the Court 19 years later issued its ruling in the sequel case of Planned Parenthood v. Casey, the concept grew substantially broader.
In a phrase that has always rankled conservative judges, lawyers, politicians and academics, and that seems clearly to have agitated Justice Alito, too, the Casey decision said: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It would be difficult to pay a greater tribute to the virtue of personal autonomy.
It is widely believed that, when three Justices joined together to write the controlling opinion in the Casey case, Justice Anthony M. Kennedy was personally responsible for writing that phrase. The concept of liberty was always at the heart of his view of the grand promises of the Constitution.
That is informed speculation, but it probably explains why close observers of the Court’s work believe that the one conservative Justice among those so far supporting the Alito draft who might split away before the final decision emerges is Justice Brett M. Kavanaugh. A former law clerk for Kennedy, Kavanaugh was appointed to that very seat by President Trump.
If, however, five Justices do remain together and the draft opinion now circulating emerges without substantial change in coming weeks, what ripple effects might follow from the draft’s robust skepticism about the right of privacy as a constitutional foundation for rights?
Start with the group of rights that involve directly abortion itself. If those rights’ constitutional foundation crumbles, there would seem to be nothing left of the core rule that, however much states may experiment with restrictions, they can never impose a flat ban on abortion before a fetus has developed to the point of independent survival if delivered (the point of “viability”).
While the Mississippi case involves only a ban on abortion after 15 weeks of pregnancy, there may be no remaining constitutional basis for challenging any restriction that applies from the very outset of pregnancy – that is, after the moment of conception. Absurdly, perhaps, abortion might be forbidden even for women who do not yet know that they are pregnant.
Since the Roe and Casey decisions attempted to balance the woman’s reproductive autonomy with the fetus’s potential life, the loss of the woman’s right to abortion would shift the balance heavily in favor of protecting fetal development – unless an abortion were absolutely necessary to prevent the gravest consequences for the pregnant woman (death or profound physical impairment). Even in that situation, states may be free to mandate procedures that would maximize the chances of saving the fetus, even at the woman’s risk.
State legislatures, freed of constitutional restraints, may well be emboldened not only to ban abortion throughout pregnancy for their residents, but also to put abortion beyond reach for those women by forbidding them from traveling elsewhere to obtain abortion or other reproductive services.
Congress, similarly freed, could be moved to impose a nationwide ban on abortions, perhaps at any stage of pregnancy. The Senate’s Republican leadership, eyeing Alito’s draft opinion, in fact is already pondering such a move if their party regains control of the chamber.
But the constitutional right of privacy has never been about abortion alone. What other rights based on the concept of personal autonomy or private choice may be in jeopardy if the draft becomes binding law?
Potential impact on marriage and family life
** The constitutional right to marriage may be the most endangered, especially a right to marry a partner of the same sex or a partner of a different race. Both appear to be potential targets based upon religious or moral values, and the Alito draft is strongly sensitive to allowing state legislatures to impose restrictions based upon such values.
** Providers of various marriage-related services could gain considerably wider opportunity to limit the marital partners that they would be willing to serve.
** The choice of how to educate one’s children could be at risk, with legislatures or school boards limiting parental choice by enhancing the power of the state to dictate education policy through control on funding or curriculum and library book selection – again, based on moral or religious judgments about how children must be shielded.
** Children of foreign nationals illegally in the country may lose the right they now have to go to public school for free.
Potential impact on private sexual conduct
** A ban on abortion rights may well lead to more wide-ranging – perhaps even nationwide — controls on drugs believed to interrupt or prevent pregnancy. Pharmacists could be banned from filling abortion medications.
** The choice of partner for private, intimate sexual relations could be restricted, on moral or religious grounds.
Potential impact on women’s equality
** With the Court majority pushing the experience of pregnancy toward a moral choice managed by government, extremists in legislatures may continue – as some already do – to reach for controls on what women may do in private, on the job, or out in public.
** If a woman’s personal autonomy, the right to make choices central to her life and future, is seen to be diminished in value, the movement toward equality that began with the 19th Amendment in 1920 and expanded with a partial recognition of other forms of constitutional equality in a 1971 Supreme Court decision, may be stalled.
** With women having lost a right that they had had for a half-century, male-dominated state legislatures may feel freer to remain unresponsive to the women’s rights agenda. Any chance of states’ approval of a revived Equal Rights Amendment, for example, could diminish further or even disappear.
No doubt, Justice Samuel Alito would insist that his draft opinion in no way launches any such brave new constitutional world. He hoped to draw other Justices to sign on by insisting that the Court was engaging in little more than error-correction. But a constitutional change of such historic dimensions cannot be hidden under claims of judicial modesty.