This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status.
My first claim is that, notwithstanding the shockwaves that Dobbs has generated among pro-choice Americans, Dobbs is not as radical or unprincipled as some on the Left have claimed. Dobbs’ holding that Roe was wrongly decided is within the bounds of conventional constitutional interpretation. My second claim is to predict that the negative implications of Dobbs for other liberty rights are unlikely to come to pass for at least some rights that Dobbs’ methodology arguably endangers. The Dobbs Court left itself “off ramps” that it will likely use to preserve liberty rights already recognized, namely, by distinguishing them from abortion and by relying on stare decisis. My predictions rely primarily on an assumption that the Court is unlikely to issue rulings that deviate significantly from widely-held societal values, especially if held by a significant percentage of political conservatives. The Court will most likely uphold access to contraception and interracial marriage. With less confidence, I expect that the Court will uphold adult sexual intimacy, including same-sex intimacy, and same-sex marriage.
My third claim is about the future of equality rights. The Court will likely maintain existing equal protection doctrines pertaining to race and sex. The exception is that the Court will likely invalidate race-based affirmative action, notwithstanding that the original meaning of the Fourteenth Amendment, history, tradition, and precedent all support the lawfulness of affirmative action. For gay rights, although the Court might cut back on recently recognized rights, I believe it will preserve them while making accommodations in some contexts for religious objections. Ultimately, the future direction of liberty and equality will depend less on Dobbs and more on the moral and political views of the swing Justices.
Dobbs and the Future of Liberty and Equality,
72 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol72/iss1/5