by Caleigh Harris, Blog Editor, University of Cincinnati Law Review Vol. 91
On June 24, 2022–nearly six weeks after the unprecedented, leaked draft opinion–the Supreme Court of the United States published Dobbs v. Jackson Women’s Health Organization.1Dobbs v. Jackson Women’s Health Organization, No. 19–1392, slip op. (U.S. June 24, 2022), https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. The opinion unapologetically discards nearly fifty years of settled constitutional law precedent and overturned Roe v. Wade–claiming no right to abortion can be supported by the Constitution.2Id. The right to an abortion is based in Supreme Court precedent by finding the right to privacy implicit in the country’s order of fundamental fairness.3Roe v. Wade, 410 U.S. 113 (1973). While the opinion makes clear that abortion is unique in that it implicates “life or death,” the right to privacy is not at issue based on this ruling.4Dobbs, No. 19–1392 at 5.
Many cases in the family-law realm have been supported by the right to privacy. Obergefell v. Hodges, for example, legalized homosexual marriages as a constitutional right; Lawrence v. Texas overruled the criminalization of homosexual activity based on privacy rights; and Griswold v. Connecticut upheld the constitutional right of marital privacy in determining whether the couple would use contraceptives. Each of these cases involves family planning, marriage, and/or the governance of relationships. Additionally, each is situated on the narrow perch of the right to privacy–one in which the Supreme Court seems all too willing to knock at any given moment.
Current family law is largely based on assumptions about marriage and parenthood. Throughout the past century, societal expectations of family order have drastically changed, creating a nostalgic, almost antiquated feeling for some of the codified laws regarding families. However, with the expansion of privacy rights from the Court, traditional families have become much less representative of what family can and should be. After Dobbs, the question remains whether this trend will continue or if the trajectory will revert to what it was in the early twentieth century.
After the Dobbs opinion dropped, many are confused about how the Court got here. Although law review articles are generally written for a legal audience, this article’s aim is to demystify the legal history that led to both the landmark decision in Roe and its usurping decision, Dobbs. First, it will discuss the long-standing history of the right to privacy found throughout the twentieth and twenty-first centuries, along with the policy values supported by these decisions in family law. Next, it will pivot to the nearly fifty-year-long history of abortion jurisprudence by discussing Roe v. Wade, Planned Parenthood v. Casey, and finally the holding of Dobbs. Lastly, this paper will discuss what this holding means for other cases that rest upon the right to privacy and the future of family law.
A. State Control Over Sexual and Intimate Relationships
Historically, family law has balanced between the punishment and protection of intimate relationships.5Douglas NeJaime Et Al., Family Law in a Changing America 55-85 (2021). To reflect the societal shift in attitudes about sexual conduct, the laws began to trace toward a hands-off trend, acknowledging that sexual acts are private, consensual acts between adults who are typically, but not always, unmarried.6Id. The prohibition of certain sexual acts and governance of intimate relationships slowly saw a liberalized change; these acts were now decriminalized and, in some cases, granted constitutional protection by the Court.7Id.
Criminalized sexual conduct included fornication, adultery, sodomy or same-sex intimacy, distribution of contraception, and interracial sexual relations or marriage.8Id. at 55-63. While some sexual relationships are still prohibited today–namely, sexual relationships in which at least one person is a minor and therefore has not reached the age of consent, or relationships involving incest–these prohibitions have been generally accepted under a broad policy of public interest by the American people. Most would agree that the State has a compelling interest against the grooming of minors or the higher risk of genetic diseases commonly occurring in children of incestual couples.
Notwithstanding current prohibitions, today’s law has developed from a culmination of laws and court decisions that protect intimate, adult, consensual relationships. Decades of cases established the right to liberty, privacy, and autonomy within intimate relationships, guaranteed under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause guarantees the right to “life, liberty, and property.”9U.S. Const., amend. V. Throughout the nineteenth and twentieth centuries, the Supreme Court has utilized the Due Process Clause to ensure substantive due process; that is, substantive rights that touch upon the fundamental nature of liberty and fairness.
One particular area of protection is procreation. In 1965, the Supreme Court decided Griswold v. Connecticut, a case in which a state statute criminalized the use or aiding in use of contraceptives.10381 U.S. 479 (1965). The Court held this statute to be unconstitutional as it applied to married persons because, the Court reasoned, a right of marital privacy, based on a sacred union, exists and is older than the Bill of Rights.11Id. The challenged law constituted an “impermissible intrusion into the sacred precincts of the marital bedroom.”12Id. Seven years later, the Court extended this privacy right beyond marriage, in Eisenstadt v. Baird. There, the Court overturned a statute that criminalized displaying and providing contraceptives on a college campus.13NeJaime, supra note 5, at 63. Even unmarried people were now granted the right to privacy as it relates to their reproductive health.
While procreation is at the heart of the Dobbs opinion, a long line of privacy-related cases exist that connect reproductive justice to the regulation of intimate relationships. One such area is same-sex, intimate relationships. As recently as 1986–only thirty-six years ago–a closely divided Court upheld a statute that criminalized sodomy.14478 U.S. 186 (1986). In Bowers v. Hardwick, the Court declared that this statute was facially neutral–meaning it was not created to be discriminatory.15Id. However, it was only enforced against persons of the same-sex, effectively criminalizing homosexual intimacy.16Id.
Lawrence v. Texas eventually overturned Bowers in 2003.17NeJaime, supra note 5, at 69. Upon receiving a false tip, officers stormed Plaintiff John Lawrence’s bedroom while he was in bed with another man, Tyron Garner. Officers handcuffed the pair, took them to jail in their underwear, and kept them overnight. Lawrence argued that the law which criminalized deviate (re: homosexual) sexual intercourse was discriminatory.18Lawrence v. Texas, 539 U.S. 538 (2003). In a six-to-three opinion, the Court struck down the law because it violated the Due Process Clause–upholding the right to liberty and privacy. Lawrence reframed the issue that the Court punted in Bowers, asking “whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause.”19Id. at 564. Lawrence emphasized that sexual behavior is one of the most private human activities that occurs in the most private of places: one’s home.20Id. at 567.
Who can marry whom has also been regulated by the State for the vast majority of this nation’s history. In 1967, the Supreme Court upheld the constitutional right to marriage for interracial couples in Loving v. Virginia.21388 U.S. 1 (1967). Another forty-eight years passed before the Court recognized the right to marriage for same-sex couples; the Supreme Court required the states to recognize and license same-sex marriage in 2015. The five-to-four decision emphasized the history and importance of marriage and the Court’s development of personal liberty in intimate, private choices, ultimately concluding that marriage is a fundamental right under substantive due process.22Obergefell v. Hodges, 576 U.S. 44 (2015). Individual autonomy, the Court reasoned, is a fundamental liberty and concretely implicated by the decision to marry.23Id. at 666.
B. Abortion Jurisprudence
The watershed case for abortion jurisprudence is Roe v. Wade.24410 U.S. 113 (1973). There, the Court held that the Constitution does not explicitly mention the right to privacy, but the Court has recognized the right to privacy, hinted at in the Bill of Rights (see Griswold) and in the fundamental concepts of liberty contained within the Fourteenth Amendment.25Id. at 152. This right to privacy is not absolute, however, and must be considered against important and compelling state interests that are narrowly drawn.26Id. at 154. Justice Blackmun explained the relevant considerations of the right to privacy and, by extension, the right to abortion:
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.27Id. at 153.
In balancing the aforementioned privacy interests against the narrowly drawn state interests, the Court designed a trimester framework: during the first trimester, an abortion must be left to the medical judgment of a pregnant person’s physician; during the second trimester, the State may regulate abortion only insofar as it is reasonably related to maternal health; and, finally, upon the point of viability, the State may choose to regulate and proscribe abortion except where necessary to save the life or health of the mother.28Id. at 165.
Almost twenty years later, the Court revitalized the abortion debate in Planned Parenthood of Southeastern Pennsylvania v. Casey.29505 U.S. 833 (1992). There, the Court replaced the trimester framework with the undue burden test, stating, “Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of liberty protected by the Due Process Clause.”30Id. at 874. In essence, Casey held that abortion regulation is permitted by the State, so long as a woman’s right to abortion is not unduly burdened and she may have access nonetheless.
Relevant to the Dobbs opinion, Casey stood firm in upholding the tenants of Roe based on stare decisis–the principle that courts must follow legal precedent. The Court affirmed that Roe was based in valid constitutional analysis, which the Casey Court was not at liberty to “repudiate.”31Id. at 869. Furthermore, the Court announced that “Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition.”32Id. at 870 (alluding to Thonrburgh v. American College of Obstetricians and Gynecologists and City of Akron v. Akron Center for Reproductive Health, Inc.).. With Roe and Casey in mind as a necessary background to the recent opinion, Justice Alito’s reasoning becomes tenuous, at best, and intellectually dishonest at worst.
In Dobbs, Justice Alito states, “Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one [in Roe v. Wade].”33Dobbs, No. 19–1392 at 1. The opinion paints Roe as a “raw exercise of judicial power.”34Id. at 3 (citing from Roe, 410 U.S. at 222 (White, J. dissenting.[/mfn] Justice Alito writes in the name of federalism–stating that twenty-six states have expressly asked the Court to overrule Roe.35Id. at 4. In Dobbs, the Court states:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including. . . the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit with the concept of ordered liberty.’36Id. at 5 (citations omitted).
Justice Alito noted that Roe’s defenders believe that abortion rights fall into the same category as other rights recognized which involve intimate sexual relations, contraception, and marriage; however–according to the opinion–abortion is unique because it “destroys. . . ‘an unborn human being.’”37Id. Furthermore, stare decisis is not controlling the area of abortion jurisprudence because Roe, having been accepted as good law for nearly fifty years, was “egregiously wrong from the start,” with “exceptionally weak” reasoning and “damaging consequences.”38Id. at 6. The right to an abortion cannot be found in due process because it is not fundamental to our scheme of ordered liberty. History, according to Alito, does not find precedent for incurring the right of a woman to choose whether to get an abortion.
A. The Consequences of Dobbs
The argument in Dobbs is backward thinking, lacking the fundamental incentive to view our nation as one of progress. Even if abortion is not a right rooted in the history of our nation, it is a right rooted in the history of many people’s lives. In the United States, an estimated one in four women will have had an abortion by the age of forty-five.39Pheobe Zerwick and Nicole Harris, The Latest Abortion Statistics and Facts, Parents.com (June 24, 2022), https://www.parents.com/parenting/i-m-a-mom-and-i-had-an-abortion/. Most people of child-bearing age were born after Roe, thus creating a historical foundation for their lives that include the right of choice and autonomy over their bodies. Rooted in our nation’s history was the subjugation of women: unable to vote until the passage of the Nineteenth Amendment in 1920, unable to sign one’s name to a contract without their husband’s approval until the 1970s, and unable to choose a safe alternative to unplanned pregnancy like abortion until 1973 (and ostensibly now, for perpetuity, until the doctrine is challenged once more).
The area of family law has lagged behind general social progress. In the mid-to-late twentieth century, family law was a passive observer in a radical change for women. For the first time in history, women could comprehensively and safely control if, when, and how they were to have children. The advent of reliable birth control, safe and legal abortions, and fertility treatments created not only the freedom of choice for many people, but also the social latitude for women to wait for the right time to become a parent and integrate fully into the workforce. With this social, political, and economic reform, marriage was expanded to include same-sex couples, parenthood was expanded to single parents or unmarried couples, and the traditional family was challenged as the status quo. While family law is situated at a unique intersection of the private, most intimate parts of a person’s life and the legal regulation implemented by the State, many areas of the law are still deserving of deference to the individual and, in some situations, their partner. This hit to abortion rights strongly interferes with one’s right against the State and creates an authoritarian atmosphere that those of child-bearing age must adhere to or risk facing criminal consequences.
Inherent in the concept of liberty is bodily autonomy and the right to make decisions regarding one’s body in private, away from the ever-watchful eye of the state. Justice Alito writes that the Court has always been reluctant to recognize rights not explicitly mentioned in the Constitution because of our own “natural human tendency” to support our views about what liberties Americans should have.40Dobbs, No. 19–1392 at 14. This argument supposes that the Founders knew best in 1789–a time before modern science, a time before African Americans were recognized as full people and women did not have the right to vote. The concept of liberty should be progressive, one that bends to the will of the American people.
Alito refers to Roe’s reliance on the right to privacy and Caseys’s dicta that the right to abortion stands for the freedom to make “intimate and personal choices that are central to personal dignity and autonomy.”41Dobbs, No. 19–1392 at 3 (syllabus). The opinion, however, perverted this notion into a right of people to think and say what they believe about the meaning of human life, but may not act in accordance with these thoughts.42Id. Essentially, the Court means that anyone may express their personal opinion about abortion, yet do not have the right to obtain one. This is a tenuous grasp on the concept of liberty and endangers the reproductive justice rights and right to autonomy that Roe finally codified for women. Unfortunately, this type of reasoning lends itself to a slippery slope, reductive in its form, and dangerous to the privacy rights implicated throughout family law.
After citing to Obergefell, Lawrence, Griswold, and Loving, Alito boldly claims: “None of these rights has any claim to being deeply rooted in history.”43Id. at 32. In a contradictory fashion, Alito emphasized, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”44Id. at 66. Justice Thomas’s concurrence, on the other hand, proclaims otherwise. Justice Thomas emphatically argues that substantive due process is “an oxymoron that lacks any basis in the Constitution.”45Id. at 2 (Thomas, J., concurring) (internal citations omitted). Antithetical to Alito’s promise, Thomas, in no uncertain terms, writes that the Court should entirely reconsider Griswold, Lawrence, and Obergefell, as all cases relying on substantive due process are “demonstrably erroneous.”46Id. at 3. (Thomas, J., concurring).
B. A Current Look at Ohio’s Abortion Laws
According to the Pew Research Center, only eleven percent of Americans believe abortion should be illegal if the pregnancy threatens the mother’s life or health; only fifteen percent believe it should be illegal if the pregnancy is the result of rape.47America’s Abortion Quandary, Pew Rsch. Ctr. (May 6, 2022), https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/. Only eight percent of people reported that abortion should be illegal in every case, without exception.48Id. The vast majority of Americans do not want an all-or-nothing approach to abortion laws, yet many legislatures are passing (or trying to pass) them.
In Ohio, Senate Bill 23 (known as the “Heartbeat Law”) bans abortions at any point after six weeks of pregnancy.49S.B. 32, 133d Leg., (Oh. 2019). Notably, this bill has no exception for rape or incest; the only exceptions exist if there is no heartbeat or if abortion is necessary to perform life-saving measures.50Morgan Trau, Ohio Attorney General Dave Yost has Six-Week Abortion ban put in Effect, Ohio Cap. J. (June 27, 2022), https://ohiocapitaljournal.com/2022/06/27/ohio-attorney-general-dave-yost-has-six-week-abortion-ban-put-into-effect/. In the case of life-saving measures, a physician must create written documentation, including the pregnant person’s medical records.51Id.
Furthermore, the Ohio legislature has also proposed House Bill 598, the “Enact Human Life Protection Act.”52H.B. 598, 132d Leg. (Oh. 2018). This bill would ban abortion in nearly all cases and at every point in pregnancy; a physician who performs an abortion for life-saving measures would be subjected to criminal charges and have to use the life-saving measure as an affirmative defense to avoid conviction.53Jo Ingles, Ohio House Committee Considers Bill to ban Abortion if Roe v. Wade is Overturned, Statehouse News Bureau (May 19, 2022), https://www.statenews.org/government-politics/2022-05-19/ohio-house-committee-considers-bill-to-ban-abortion-if-roe-v-wade-is-overturned.
The detrimental consequences of these bills are numerous. Pregnant people’s lives will be at stake, as physicians jump through legal hoops to protect themselves from prosecution in the event that they have to perform a life-saving abortion. Additionally, other reproductive choices are implicated. Many birth-control pills (especially emergency contraceptives like Plan B) work by creating an “inhospitable” environment for a fertilized egg to attach in one’s uterus.54Birth Control Pill, Planned Parenthood, https://www.plannedparenthood.org/learn/birth-control/birth-control-pill (last visited June 29, 2022). Within the realm of possibility is a ban of contraceptives that dispel fertilized eggs, as these could statutorily be considered abortion pills.
Moreover, invitro fertilization (“IVF”) constitutes the fertilization of an embryo outside the body.55What is IVF?, Planned Parenthood, https://www.plannedparenthood.org/learn/pregnancy/fertility-treatments/what-ivf (last visited June 29, 2022). Physicians will oftentimes freeze excess embryos for future use if none of the implanted ones take to the uterus.56Id. However, after a requisite amount of time and upon the knowledge and consent of the couple receiving IVF, the frozen, unused embryos will be destroyed.57Id. Reproductive assistance, under the proposed Ohio law, would possibly be considered an abortion procedure.
As Dobbs demonstrated, words concerning the safeguards of previous rights via stare decisis are just that–words. Marriage, reproduction, and sexual intimacy are at the heart of family law, yet Dobbs illustrates a regressive trend. The ability to choose who one loves, when one gets married, and if, when, or how one has children is situated in a fragile place. Family law governs the most intimate parts of a person’s life, and those rights deserve to be given deference to the individual, absent a compelling governmental reason to prohibit them.
Voting in November will be important to safeguarding substantive due process rights in the law, but voting alone is insufficient. To fight back against the curtailment of substantive rights, reach out to local, state, and federal representatives and encourage them to pass legislation that codifies and protects human rights. Additionally, donations–in both time and money–to grassroots organizations can help pregnant people access health care related to contraception and abortion services during these uncertain times. The power lies within the people and our collective power to fight back against this draconian decision.
- 1Dobbs v. Jackson Women’s Health Organization, No. 19–1392, slip op. (U.S. June 24, 2022), https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
- 3Roe v. Wade, 410 U.S. 113 (1973).
- 4Dobbs, No. 19–1392 at 5.
- 5Douglas NeJaime Et Al., Family Law in a Changing America 55-85 (2021).
- 8Id. at 55-63.
- 9U.S. Const., amend. V.
- 10381 U.S. 479 (1965).
- 13NeJaime, supra note 5, at 63.
- 14478 U.S. 186 (1986).
- 17NeJaime, supra note 5, at 69.
- 18Lawrence v. Texas, 539 U.S. 538 (2003).
- 19Id. at 564.
- 20Id. at 567.
- 21388 U.S. 1 (1967).
- 22Obergefell v. Hodges, 576 U.S. 44 (2015).
- 23Id. at 666.
- 24410 U.S. 113 (1973).
- 25Id. at 152.
- 26Id. at 154.
- 27Id. at 153.
- 28Id. at 165.
- 29505 U.S. 833 (1992).
- 30Id. at 874.
- 31Id. at 869.
- 32Id. at 870 (alluding to Thonrburgh v. American College of Obstetricians and Gynecologists and City of Akron v. Akron Center for Reproductive Health, Inc.).
- 33Dobbs, No. 19–1392 at 1.
- 34Id. at 3 (citing from Roe, 410 U.S. at 222 (White, J. dissenting
- 35Id. at 4.
- 36Id. at 5 (citations omitted).
- 38Id. at 6.
- 39Pheobe Zerwick and Nicole Harris, The Latest Abortion Statistics and Facts, Parents.com (June 24, 2022), https://www.parents.com/parenting/i-m-a-mom-and-i-had-an-abortion/.
- 40Dobbs, No. 19–1392 at 14.
- 41Dobbs, No. 19–1392 at 3 (syllabus).
- 43Id. at 32.
- 44Id. at 66.
- 45Id. at 2 (Thomas, J., concurring) (internal citations omitted).
- 46Id. at 3. (Thomas, J., concurring).
- 47America’s Abortion Quandary, Pew Rsch. Ctr. (May 6, 2022), https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/.
- 49S.B. 32, 133d Leg., (Oh. 2019).
- 50Morgan Trau, Ohio Attorney General Dave Yost has Six-Week Abortion ban put in Effect, Ohio Cap. J. (June 27, 2022), https://ohiocapitaljournal.com/2022/06/27/ohio-attorney-general-dave-yost-has-six-week-abortion-ban-put-into-effect/.
- 52H.B. 598, 132d Leg. (Oh. 2018).
- 53Jo Ingles, Ohio House Committee Considers Bill to ban Abortion if Roe v. Wade is Overturned, Statehouse News Bureau (May 19, 2022), https://www.statenews.org/government-politics/2022-05-19/ohio-house-committee-considers-bill-to-ban-abortion-if-roe-v-wade-is-overturned.
- 54Birth Control Pill, Planned Parenthood, https://www.plannedparenthood.org/learn/birth-control/birth-control-pill (last visited June 29, 2022).
- 55What is IVF?, Planned Parenthood, https://www.plannedparenthood.org/learn/pregnancy/fertility-treatments/what-ivf (last visited June 29, 2022).