In future cases, the Supreme Court continued to recognize that its heightened protection of privacy rights was a product of a substantive due process assessment, while insisting that it was consistent with Lochner’s rejection of applying only to “fundamental” freedom interests. . As a result, the court’s doctrine required a distinction between “fundamental” interests of liberty, for which government interference was presumably unconstitutional, and ordinary interests of liberty, which the government was presumably free to restrict so long as it acted rationally.
The judges continued to struggle over which freedoms were considered fundamental. A narrower test favored by more conservative judges limited fundamental rights to only those rights that were clearly set out in the text of the Constitution or would have been considered essential by the time the Fourteenth Amendment was passed in 1868. A more comprehensive approach, applied in Roe and other cases, looked more towards a contemporary assessment of the great commitment to the individual. Yet another approach, proposed in cases such as Lawrence v. Texas, has focused on evolving understandings of essential personal freedom, as evidenced by the popular consensus.
While Roe has remained controversial in legal theory circles, in part because of his expanded understanding of fundamental rights and because of the surprising specificity of his trimester framework for reviewing abortion laws, it was confirmed in Planned Parenthood v. Casey in 1992 in a joint opinion that appeared to be a affirm an understanding of a substantive due process that has evolved with popular values. A series of historical cases over the next quarter-century seemed to anchor this notion. Specifically, the court extended the same privacy principle to protect the right of homosexuals to enter into intimate relationships and marry based on recognizing an “emerging awareness” of their equal claim to dignity in key relationships, despite the lack of historical protection for these rights.
It was on this landscape that Dobbs, of course, signaled an abrupt reversal. While the court did not outright reject the concept of a substantive due process, it rejected any basis for recognizing “fundamental rights” other than in the text of the Constitution or in deep-rooted historical traditions. Because the right to abortion was not in the text, and because the authors of the Fourteenth Amendment in 1868 did not consider abortion a fundamental freedom, the court ruled that there was no basis for special constitutional respect for a woman’s right to choose. . Instead, the majority considered the right to make decisions about pregnancy an ordinary freedom of the same rank as everyday choices about lifestyle, trade or recreation, subject to freewheeling regulation as long as the government acted rationally.
In the future, therefore, Dobbs’ approach would include fundamental rights entitling to strong constitutional protections for a close band of freedoms so universally respected over time that there is little chance of political interference anyway.
The “privacy” right that Dobbs was aiming for is in fact a right to personal autonomy: a right, as Dobbs put it, “to make and carry out important personal decisions without government interference.” And with Dobbs, that right has dwindled considerably. Therefore, many suggest that the following rights in their sights could be those of contraception or same-sex marriage, as Judge Thomas openly encouraged in his assent: if these rights are not found in the text of the Constitution and if the authors of the Fourteen Amendment had can’t think of them in 1868, it’s not clear why they would stand on firmer ground by Dobbs logic.
A “Very Different” Kind of Privacy: “The Right to Protect Information from Disclosure”
The impact of the Dobbs court ruling and its implications for autonomy rights in the name of privacy is seismic, but Dobbs does not mean the end of legal protections for other forms of privacy, under both the Constitution and other laws. For example, the text of the Fourth Amendment makes it clear that the government cannot freely search houses without a warrant. Dobbs’ opinion doesn’t change that.
Dobbs also says nothing about what Justice Alito called a “very different” kind of privacy in his majority view, “the right to protect information from disclosure.” It may seem like a thin distinction, as both autonomy and disclosure interests stem from a common root in privacy in the sense of “right to be left alone,” but constitutional autonomy rights and the right to informational privacy have different objectives and often different legal bases. .
This post How Dobbs threatens to torpedo US privacy rights
was original published at “https://www.wired.com/story/scotus-dobbs-roe-privacy-abortion/”