This week’s news about the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization (the Mississippi abortion case) has dropped us all, once again, into legal technicalities most of us are not familiar with. In my essay today I’m going to go all legal nerd (the second best kind of nerd after economic nerd) on my patient readers.
There are a couple of constitutional amendments we need to understand to know what’s going on here. A lot of discussion regarding this case (and associated cases) were decided under a somewhat hazy constitutional doctrine called the “the right to privacy.” Now, you could look at the Constitution for a long time and not see anything called “the right to privacy.”
Justice Louis Brandeis enunciated this doctrine in an 1890 Harvard Law Review article. He was writing about the Fourth Amendment, saying that the amendment’s protection against unreasonable search and seizure created “the right to be left alone.” In his 1965 opinion in Griswold v. Connecticut¸ Justice William O. Douglas expanded on Brandeis’s idea, stating that the First, Third, Fourth, and Fifth Amendments broadly encompass the right to privacy. He added that the 9th Amendment, which says that the rights of the people are not limited to those enumerated in the Constitution, undergirds the assumption that the Constitution guarantees a right to privacy.
Griswold v. Connecticut challenged the constitutionality of an 1879 Connecticut law that criminalized the use of contraception (even in marriage). The 1965 decision reversed the 1879 law and affirmed a right to privacy under the Constitution.
Roe v. Wade and similar cases expanded on the idea of a right to privacy. Later cases protecting gay rights and same-sex marriage were decided on similar grounds.
There is another wrinkle in all of this. The first words of the Bill of Rights say this: “Congress shall make no law . . .” and then proceed to list the various things, in Amendments 1-8, that Congress may not do. It was not until 1925 that another Supreme Court case, Gitlow v. New York, declared that the First Amendment protection of freedom of speech applied to the states through the Due Process Clause of the 14th Amendment.
Here’s the logic: the 5th Amendment and the 14th Amendment both use the same eleven words to protect the rights of citizens: no one shall be “deprived of life, liberty or property without due process of law.” The court in Gitlow ruled that because the same words were used in the 14th Amendment (which restricted the rights of states after the Civil War) and in the 5th Amendment (which restricted the power of the federal government and was in the Bill of Rights ratified in 1791), the freedom of speech restrictions that were the basis of the Gitlow case made the 5th amendment applicable to the states through the 14th amendment.
But this wasn’t the end of this. Over the next 40 years, almost all of the Bill of Rights was selectively “incorporated” through Supreme Court decisions to make the Bill of Rights restrictions applicable to the states as well. In simple terms, that meant that if Bill of Rights denied the federal government the right to do something, that ban was extended to the states. This doctrine stimulated the evolution of a more consistent structure of rights from one state to another. The following chart shows how various rights were incorporated over the years. You should read the chart this way: “The Bill of Rights said that Congress could not regulate Free Speech; until 1925, however, the states were free to limit free speech. After 1925, the same rules applied to both the federal and state governments.”
So, what does this have to do with the leaked Supreme Court opinion? Well, first, of all, Alito’s language undercuts a legal doctrine that has existed since the 1890s that the Constitution implies some right to privacy. This puts Obergefell (same-sex marriage) at risk, along with other cases that have guaranteed constitutional protection to other marginalized groups, like immigrants, LBGTQ+, and disabled people.
It doesn’t take much imagination to realize that the Doctrine of Incorporation could also be undone by a similar norm-destroying Supreme Court decision that threatens the Constitutional rights of people living in states that want to limit those rights. Alito felt free to aggressively dismiss an idea (the right to privacy) that has been around since the 1890s; that puts the Doctrine of Incorporation (around since 1925) squarely in the sights of the court. This court has already rolled back Voting Rights, which were brought under Federal control with the 1965 Voting Rights Act. The court rescinded this right with the 2013 Shelby County case. It’s easy to see where this is going.
The progress made in Civil Rights for all Americans since 1950 or so is at risk with the current Supreme Court. The pattern in Supreme Court decisions over my lifetime has been generally in the direction of expanding rights to affirm our national creed of “liberty and justice for all.”
Alito has fired the warning shot that says “all” isn’t really “all.”
I wonder if the innocent children that lost their lives from the wisdom of those who passed and agreed with the insidious law that allowed their demise would agree with you. Why weren't their rights protected? Maybe they're rejoicing in heaven for their fellow infants yet to be born!
Great piece! I love it when you're nerdy.