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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Abortion is Done and Our Right to Privacy is Next

By Donald Scarinci, July 11 2022 2:23 pm

Roe v. Wade is one of fewer than 300 cases that the U.S. Supreme Court has overturned since the 18th Century.  The recent decision in Dobbs v. Jackson is alarming because it takes away a generations-held right and sets the stage for lifetime-appointed justices to take away more rights in the future, particularly those that relate to personal privacy.

Justice Ruth Bader Ginsberg, a staunch supporter of abortion rights, always maintained that the legal reasoning behind Roe v. Wade had weak Constitutional footing. By moving too fast to legalize abortion, she said, the Court had essentially put a target on its back. Last month, as she feared, it all came crashing down.

The Court noted in its controversial decision overruling Roe v. Wade, that the Constitution never mentions abortion. Similarly, it said, there is no express right to privacy or personal autonomy in the Constitution. Prior cases were therefore incorrectly based on other enumerated rights and the broad notion of “liberty.”

In a stark reversal, the Court’s conservative majority concluded in Dobbs v. Jackson that the Constitution does not establish an implicit right to obtain an abortion under the Fourteenth Amendment or within the “zones of privacy” established in prior Court decisions.

Now, the question is whether other previous decisions involving the right to privacy and other implicit rights are also at risk.

Right to Privacy Established Under Griswold

In 1965, the Supreme Court first recognized a constitutional right to privacy in Griswold v. Connecticut, ruling that the State of Connecticut could not prevent married couples from purchasing contraception.

In justifying the fundamental right to privacy, Justice William O. Douglas argued that the Bill of Rights’ specific guarantees have “penumbras,” created by “emanations from these guarantees that help give them life and substance.” He highlighted several amendments—including the First Amendment guarantee of free speech, the Fourth Amendment protections against unreasonable searches and seizures, and the Fifth Amendment self-incrimination clause—to support a general right to privacy.

Roe v. Wade Decision Relied on Due Process

In 1973, in Roe v. Wade, the Court cited Griswold in striking down a Texas law that criminalized nearly all abortions. The Court held the abortion law was unconstitutional, as it violated the right to privacy embodied in the Constitution’s First, Fourth, Ninth, and Fourteenth Amendments. Citing a long list of cases, including Griswold, the Court concluded that the “zone of privacy” guaranteed by the Constitution is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. As Justice Harry Blackmun explained:

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In Roe, the majority rested its decision largely on the Fourteenth Amendment’s Due Process Clause, reasoning that its guarantees of liberty extended to a woman’s right to choose whether to bear a child or not. According to Justice Blackmun, the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy.”

From the outset, legal scholars criticized Roe, arguing that the decision required a stronger case than just finding that the right to privacy is implicit in the Constitution. Nevertheless, nineteen years later, in Planned Parenthood of Se. Pa. v. Casey, the Court affirmed Roe’s central holding that states could not ban abortion prior to viability. In reaching that decision in 1992, the Court emphasized that abortion “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” and is “central to the liberty protected by the Fourteenth Amendment.”

Dobbs v. Jackson Decision Rejects

Forty-nine years after Roe, Dobbs v. Jack­son overrules both Roe and Casey, concluding that Roe was “egregiously wrong from the start” and based on faulty reasoning. “Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion,” Justice Samuel Alito wrote on behalf of the conservative majority. “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

The majority noted that “[t]he Constitution makes no reference to abortion,” and “no such right is implicitly protected by any constitutional provision.” It further emphasized that the Due Process Clause only protects rights that are “deeply rooted in this Nation’s history” and “implicit in the concept of ordered liberty.”

The majority also rejected reliance on cases like Griswold to establish a right to abortion. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite,” Justice Alito wrote. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

In its dissent, the Court’s liberal minority expressed concern that Dobbs may have broader implications, despite the majority’s assurances. “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation,” the dissenters wrote. “Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Indeed, Justice Clarence Thomas confirmed their concerns. “In future cases,” he wrote, “we should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell… Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

So, are the Court’s other precedents that were based on the right to privacy poised to go down like a house of cards? It would be logical to predict that future legal scholars may cite Dobbs as the beginning of the end of using a fundamental right to privacy on a host of legal issues. The Dobbs decision revealed that, under the new conservative majority, the once unthinkable is now very thinkable.

Donald Scarinci is well known to our readers.  He is the founding Partner of Scarinci Hollenbeck, one of NJ’s largest law firms, lawyer and advisor to many NJ elected officials, a Trustee of the NJ Institute of Local Government Attorneys, editor of the popular Constitutional Law Reporter https://constitutionallawreporter.com/ and author of four books.

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