The Implications and Impact of Dobbs on Privacy
Amid the polarization of the Internet age, hyperbole seems to inspire outrage that can be hard to understand. The court of public opinion leads to a system motivated by a narrative’s salience—even if that narrative sometimes lacks evidence. This was showcased during the panic that exploded across the country following the overturning of Roe v. Wade in Dobbs v. Jackson. While liberal anxiety stems partially from the perceived consequences of Dobbs’ stripping of privacy rights, conservatives maintain that the overturning of Roe was based in a reading of the Constitution with “original intent.”
Roe v. Wade (1973) was a landmark decision that conferred the right to abortion under the guarantee to privacy found in the Constitution. While the Supreme Court usually sticks to the principle of stare decisis—a legal philosophy that encourages the court to adhere to precedent—the Dobbs decision rejected Roe’s precedent on several key points. The most relevant factor in the rejection was Roe’s alleged conflation between “the right to shield information from disclosure and the right to make and implement important personal decisions without government interference.”
Essentially, the current Court interprets privacy protected in the Constitution as the right to shield information from disclosure—and not, as Roe held, the right to make personal decisions without government interference. This strict interpretation of privacy threatens several other Supreme Court cases—most famously, that of gay and interracial marriage (Obergefell v. Hodges and Loving v. Virginia).
In response to overturning the precedent set by Roe, the Court noted stare decisis’ weakness when it comes to Constitutional interpretation. It did not reject the concept of stare decisis at large. A pillar of conservatism in the American judicial system is the reading of the Constitution with so-called “original intent”—that is, reading the Constitution with a literal meaning. This philosophy of original intent is demonstrated in the current Court’s stated “reluctance” to recognize rights that aren’t directly protected by the Constitution. The Court’s conservative bloc is adhering to traditional conservative tactics—refusing to protect any rights not directly outlined by the Constitution.
However, this rejection of stare decisis in the case of Roe, the interpretation of the right to privacy in Dobbs, and the emphasis placed on the Constitution’s original intent may spell trouble for cases like Loving and Obergefell. The right to privacy was first recognized by the Supreme Court in the case Griswold v. Connecticut (1965). Griswold recognized the right to marital privacy by ruling the banning of contraceptives for married couples unconstitutional. This new right to privacy began a new era of sexual and reproductive rights continued by Loving, Roe, and Obergefell.
Accompanying these liberal interpretations of the Constitution is a culture in which the majority of Americans support interracial and gay marriage, and abortion in almost all cases. Even a majority of the Republican Party supports gay marriage, and only 37% of Americans think abortion should be illegal in all or most cases. Consequently, the Court’s decision—which enabled several states to enforce anti-abortion legislation—produced outrage and distrust in the legal system. Americans disapproved of the Court’s decision to overturn Roe at a nearly 2:1 margin, further exacerbating tensions over the Court’s seemingly unchecked power. In June of 2022, only 25% of Americans said they had a considerable deal of confidence in the Supreme Court.
If Roe’s concept of privacy protecting the right of a woman to make her own decisions is not protected by the 14th Amendment, is the right to interracial or same-sex marriage? On the one hand, Roe partially concerns a scientific debate over fetus viability that Loving and Obergefell lack. This added layer of complexity makes the case more complicated than just the reinterpretation of privacy. On the other hand, if the same reading of original intent is applied to the Constitution regarding the Loving and Obergefell cases, there is no specific Constitutional support for such rights. While these cases previously relied on privacy to support them, the concept of privacy as defined by Dobbs (the right to shield information from disclosure)—certainly doesn’t apply to interracial or gay marriage.
In Dobbs v. Jackson, the court was careful to state that Dobbs “concerns the constitutional right to abortion and no other right.” Despite this inclusion, there have been many protests across the country—both in regards to the specific overturning of Roe v. Wade and the potential implications of the decision. To add fuel to liberal fears, Clarence Thomas wrote in a concurring opinion that the Court should revisit other cases—naming specifically the aforementioned Griswold and Obergefell, as well as Lawrence v. Texas (2003), which legalized same-sex sexual activity.
Thomas’ opinion sparked a newfound fear of cases being in danger due to Dobbs and the new boldness of the conservative bloc on the Supreme Court. Critics of the Justice argued that because Thomas is himself a member of an interracial marriage, he did not recommend re-examining the application of the right to privacy defense in Loving.
After Thomas came under fire for his concurring opinion, protestors began calling out the Court’s other conservative justices—namely Justices Barrett, Gorsuch, and Kavanaugh. Across social media, people expressed outrage over the supposed hypocrisy of the Justices—with actor George Takei’s tweet declaring the justices had lied about their Roe v. Wade stance going viral.
Takei wrote that these three recently confirmed justices had promised not to overturn Roe in their Senate confirmation hearings. However, that claim was later proven to be false. While the Justices did acknowledge the importance of Roe as precedent in their Senate hearings, they fell short of promising not to overturn the landmark decision.
The Supreme Court’s power has been called into question several times in its long history—especially when deciding matters integral to the American people that have larger potential consequences.
The overturning of Roe v. Wade was a rejection of an individual’s right to privacy in making decisions—and a reinterpretation of the concept of personal privacy as specifically protected by the Constitution. Dobbs v. Jackson has implications beyond the scope of abortion law. While it was not the first time that stare decisis has been rejected, it was an important example of the resurgence of conservative power. The ruling of Dobbs using the constitutional interpretation of “original intent” sends an important message for the future of this court’s constitutional interpretation, and allows for the possibility of other cases being overturned.
While the Court is not currently scheduled to hear any cases that threaten personal privacy, statements by Justice Clarence Thomas and the conservative attitude of the majority bloc are impossible to ignore. The Conservative bloc of the Supreme Court has significant power, and the overturning of Roe demands they be taken seriously. If the majority of Americans are not a considerable enough force to protect precedents like Roe, can they trust the Court’s tentative defense of cases like Loving and Obergefell following Dobbs?
Greta Filor is a junior at Brown University, double concentrating in Economics and History. She is a staff writer for the Brown Undergraduate Law Review and can be reached at greta_filor@brown.edu