‘When a right is created by the Supreme Court, it can go away’: What overturning Roe could mean for contraception access, sexual privacy, marriage equality

• Beth Wallis
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In the recent Dobbs v. Jackson Women’s Health decision, Roe v. Wade and Planned Parenthood v. Casey were struck down. In his opinion, Justice Clarence Thomas wrote three previous rulings that used the same constitutional mechanism as Roe and Casey had been decided erroneously and should be reexamined. 

StateImpact Oklahoma reporter Beth Wallis interviewed Kathleen Tipler — an OU political science professor who specializes in gender, sexuality and the law — to understand how the Dobbs decision could impact other precedents related to contraception, sexual privacy and marriage equality.

This interview has been edited for brevity and clarity.

Why substantive due process matters

Wallis: Well, Dr. Tipler, thank you for taking the time to speak with me today. I wanted to start off with the Dobbs Jackson Women’s Health decision from last week. The court’s majority disagreed with how Roe and Casey used substantive due process and the right to privacy. Can you help us understand what that means? 

Tipler: Roe and Casey were both grounded on the Due Process Clause. The 14th Amendment and the Fifth Amendment says that before the government can deprive somebody of their life, liberty and property, there has to be this due process of law, and there’s basically two forms of due process that courts have recognized: One is what is called procedural due process, which means there must be certain procedures put in place by the government to make sure that the overwhelming power of the government doesn’t just sort of wipe away whatever protections any person has. And they’re not unfairly and unjustly deprived of life or liberty, like put in jail without good cause, or property. And so we have protections. For example, if you’re charged with a crime and can potentially be put in jail, you have a right to see what evidence there is against you. You have these rights to provide evidence on your own behalf to protect yourself and to cross-examine witnesses. And these are all what we call procedural rights, the established procedures to make sure that the government doesn’t unjustly take away your life, liberty or property. 

Substantive due process is the second area of protections that courts have recognized as following from that clause. If you think about, okay, if we have these procedures in place in order to make sure that people aren’t unjustly deprived of their life, liberty and property, we have to think about, what does that liberty consist of? So the obvious one is your ability to roam about and do what you want and not be in jail. And then there’s this other question of, ‘Well, what else is included in that concept of liberty?’ Since the Constitution was written, the courts have recognized particular rights as being referenced and being protected by that term, ‘liberty.’ And that’s where we get this idea of substantive due process. 

You really see that burgeoning in the late 19th century and the early 20th century, with the Supreme Court recognizing particular individual economic rights, including a right to contract. And they saw this right to contract as being protected by the Due Process Clause. And in doing that, they said the Supreme Court struck down all sorts of economic regulations — regulations between employees and employers — as violating this individual right to contract, and the Court moved away from that position in the 1930s, which people associate with this case in 1937 that really sort of abandoned this doctrine of recognizing this right to contract as a precursor to a substantive right under due process. In the late 1930s, there’s this famous footnote where the Supreme Court says that, ‘We recognize that there’s other substantive rights in the due process clause.’ Including all the rights that are in the first eight amendments, the Bill of Rights, as well as rights to participate in political process, as well as rights that would protect, quote unquote, ‘discrete and insular minorities.’ Which we recognize now as very much including racial minorities, that is a very common use of that. So that’s sort of the origins of it. 

And then, moving past the 1930s, you get it repeatedly recognized in many cases, a lot of them have language of an individual right to choose about intimate relations and family relationships, including an early one in Myers v. Nebraska, about the parents having a fundamental right to control the upbringing of their children. So you have these rights around like child custody, rights around marriage, rights about intimate relations. And we see the court is recognizing these sorts of rights, rights to privacy, as providing the content for that word ‘liberty’ in the due process clause.

How Roe and Casey were decided and what Dobbs challenged from those decisions

Wallis: So we have this idea of substantive due process and the right to privacy. How did that play into Roe and Casey? And then how is that interpreted in Dobbs?

Tipler: In short, the Dobbs opinion says that when we’re reading that word, ‘liberty’ in the Due Process Clause, we should not read within it a right to abortion. That’s what it says. And it takes this long standing idea that these rights that the court reads into ‘liberty’ must be rooted in the nation’s traditions and ordered liberty. And the way that the Dobbs decision reads, it is this very stringent, strict, hardcore is the way I would describe it, originalist reading, where it goes back and looks at, ‘Was there an explicit right to abortion in the text, in the legal doctrine, at the time that the Fifth Amendment was written in the 18th century, and the time that the 14th Amendment was written in the 19th century? And I think probably not shockingly to anyone, there is no explicit reference to a right to abortion in 18th century text. If you look at the history, this wasn’t something really that legal professionals were talking and thinking about at that point. There are some references to the quote unquote, ‘quickening,’ which is associated now with the idea of viability. But we’re also talking about 18th century medical conceptions — ideas that do not map on to current medical knowledge. I mean, even the medical knowledge, and the technology of Roe doesn’t map on to what we have now because it’s advanced so much. So they’re using this ‘there has to be this explicit right to abortion in 18th and 19th century text.’ It’s not there. So it’s not a fundamental right that’s protected by substantive due process. This idea that your life, liberty and property can’t be unjustly deprived by the state. That’s how Dobbs gets to the place it gets. 

If you go back to Roe, it’s saying that they locate a right to privacy, particularly a right to privacy between a woman and her doctor to make this decision, which, following the ideals of that time, was very much a medical decision. It hadn’t been politicized in the way that it has now. And they are getting that right to privacy from an earlier decision about contraception. 

How Griswold v. Connecticut spelled out the case for a right to privacy

Wallis: So Roe viewed the right to privacy as under that liberty umbrella, and that privacy precedent came from another case — Griswold v. Connecticut in 1965. Talk about how Griswold is connected.

Tipler: Griswold v. Connecticut was a decision that struck down a Connecticut law banning contraception. And a couple of interesting things about Griswold — one interesting thing is that contraception wasn’t particularly controversial at that time. They actually had trouble bringing the case because there weren’t arrests being made. Also interesting at that time is that in the 1960s, you have the first oral contraception, and so you have this widespread use of oral contraception that again seems to be largely accepted by the public. So not a terribly controversial decision to strike down this ban on contraception. 

But it did create this right of privacy in a legal reasoning that was and continues to be controversial, where they said that there is a, quote unquote ‘zone of privacy.’ And that zone is created by reading different amendments, different parts of the Bill of Rights together. So different rights that are explicitly in the Constitution together, including: There’s a right of association in the First Amendment to affiliate with whomever you want. There’s a right to not having troops quarter in your house in the Third Amendment, which indicates this area of privacy in your physical home. There is a right to be protected against unreasonable searches and seizures in the Fourth Amendment, a right not to incriminate in the Fifth Amendment. And then the Ninth Amendment, really importantly, says that the previous eight amendments should not be read as the limit to all amendments in the Constitution. The Ninth Amendment says that there are other rights that are not explicitly in the Constitution. 

And so reading all of these together, they say that there is this zone of privacy that we can read into these different explicit rights in the Constitution to see that there’s this sort of this long standing tradition of privacy and expectation that certain areas, particularly within one’s home and in a marital relationship — which is what Griswold addresses — that there’s an expectation of a right of privacy, to be protected from government interference. And that includes the decision to use contraceptives within a marriage, which is what that case is about. And so there’s also, in that opinion, discussion of this long standing value of marriage as well. So that case, Griswold, was not controversial because of its outcome at the time, I don’t think, but controversial because of pulling all of these different pieces, the different Bill of Rights together, to say that there is this right to privacy. 

And so Roe references this right to privacy, although really I think it doesn’t necessarily attach itself to that whole apparatus about pulling all these different pieces together. And it quite explicitly says wherever that right to privacy is found, it exists. And it’s ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’ 

The role of the Ninth Amendment

Tipler: I do want to emphasize the Ninth Amendment. I think it is important, because if we think about the history of the Constitution, where those first amendments come from, the ones that we call the Bill of Rights today, there was a lot of debate about whether to put those in the Constitution, and you had a large contingency of people involved in writing and ratifying it. They really did not want anything like a Bill of Rights, because they were worried — as it turned out, they were very prescient and correct here — they were worried that the Constitution would be read in a limited way as only the rights that were explicitly in it were the ones that were to be recognized, and they did not want to do that. 

So there were many, many people who did not want to have the list of rights that we now have. And ultimately that ended up being the product of a compromise, where you have James Madison sort of moving the final step of ratification along and trying to get people who oppose the new Constitution to get on board and vote for it. And one of the ways he did that is he said, ‘Okay, well, I know you guys really want this Bill of Rights. So even though I have deep concerns about it, because I think people are going to read it in this limited way, we will go ahead and make sure that’s the first thing we do after the Constitution is ratified, is add in this sort of list of rights. But we’re also going to put in The Ninth Amendment, which says, ‘Do not in the future ever read this list as the only rights that are in the Constitution.’ So when we’re talking about substantive due process, there’s also people reading the Ninth Amendment that says do not read the Bill of Rights as the only rights that the Constitution. 

So then, of course, the question comes up, ‘How do we give content to liberty?’ There is sort of this idea of looking back to tradition, and this is where you get the Court’s reading in the 20th century, a right to marriage rights, to privacy rights, to custody of one’s child, things that are not explicitly in the Constitution. But certainly there’s a long history, and the public society recognizes these, I think, as rights. And then you have Dobbs saying, ‘No, we don’t. We don’t just look at these traditions. We look at very particular moments in history at the time that the 14th Amendment was written, the time that the Constitution was written and ratified. And we look at legal text around then and we see that there is no right to abortion.’ 

I think there’s a couple of different things: One, is this looking for an explicit right to abortion. That’s not what the previous Roe or Casey were built on. They were built on a right to privacy. And Casey sort of changing that slightly to a right to make choices — intimate and personal choices that, as they put it, are central to personal dignity and autonomy, which really fits in well, I think, with that whole other tradition of other rights under substantive due process that are being articulated — the choices like child custody and marriage — that this is about individual autonomy and dignity. And that’s part of our tradition, too. Even though the right to make that choice is not explicit in 18th and 19th century legal text. So I think that’s really sort of the difference. Where are we looking? What sort of texts are we looking at? Or, are we looking at principles like dignity and autonomy that Roe and Casey saw as central to the tradition, as well as many other cases in the 20th century? 

What Planned Parenthood v. Casey decided

Wallis: So I want to talk specifically about Planned Parenthood v. Casey. Can you give a brief overview of this case and tell us how it both reinforced and modified the Roe decision? 

Tipler: So Roe said that there’s a right to privacy. And then Roe also said that state governments have a legitimate interest in both protecting the mother’s health, as well as the health of the fetus that could become a child — a potential life. And so Roe said that states couldn’t place any restrictions on abortion during the first trimester. And in the third trimester, they said that the states have to prioritize the potential life of the fetus. And in that second trimester, the states can have all sorts of prohibitions, but within some limit. So this is their attempt to balance what they saw as sort of a legitimate right to privacy, as well as legitimate interest in women’s health and safety, and this potential life of the fetus. And that trimester system is partly sort of, ‘Well, let’s create a compromise so we can move it into threes.’ And so privacy has one, potential life has another, and in the middle is a compromise. So that works nicely within the tripartite division, but it also is coming from the medicine of the time, looking at when the fetus can potentially live outside of the womb. 

And so you move on to Casey, and medical technology has changed, and so viability has changed, where viability has sort of shifted earlier into the pregnancy. Casey, instead of emphasizing this right to privacy, I think they emphasize a broader tradition of what substantive due process has come to mean in the 20th century, which is about the right to make these choices about personal and intimate life settings — things like marriage and custody of your children and decisions over child-rearing. So they’re grounding it more in that tradition. And there’s this right autonomy in your personal area, your personal life, in familial life. 

Also different in Casey, is that there’s an emphasis on stare decisis — this idea that precedent is important. And Roe v. Wade occurred almost 20 years before Casey. Stare decisis is the reason we have Casey. But if you go back and read Casey, the court is at pains to emphasize that there’s a constitutional source, there’s a constitutional argument that they’re making about personal autonomy and substantive due process. They also talk about stare decisis, but it’s one of the reasons that they say they come to the decision that they do — it’s not the only reason. 

So Casey upholds the main holding in Roe that there should be this balancing between what is now being framed more as this personal autonomy right or a right to make choices about one’s own life, as well as continued legitimate state interest in and the mother’s health, as well as this potential life in the the fetus. So it continues to balance all that, but it also changes the way that courts should examine these laws regulating abortions. Rather than just using this strict trimester framework that Roe set up, viability has changed to be earlier. So you had instead of 28 weeks, 22 weeks. 

And also, they say that there should be no undue burden on this right for women to have an abortion. There can be some burdens, they just can’t be, quote unquote, ‘undue.’ It can’t be a substantial obstacle in the place of a woman seeking an abortion. So all sorts of other restrictions are allowed as long as women can eventually get it. But since Casey, there’s been a regular, constant stream of litigation over what exactly counts as an undue burden, with the court increasingly seeing obstacles not as undue burdens — as acceptable under that undue burden standard. And critics have looked at that as shrinking the space for the right to abortion or right to choose, depending how you frame it. And then, of course, now you have Dobbs, which completely gets rid of it. 

Sexual privacy at stake?: Lawrence v. Texas

Wallis: There are two other cases I want to get into that use Griswold as precedent, and those are Lawrence v. Texas and Obergefell v. Hodges. These cases aren’t about abortion, but people are still very concerned that the Dobbs ruling could affect these rights as well. So starting with Lawrence in 2003, how was that case decided?

Tipler: So Lawrence v. Texas is regarding a Texas law that prohibited same sex sodomy. And the Supreme Court in that case reaffirmed this right to privacy and said that in this Texas law, the right to privacy was being violated, because that right to privacy includes this right to consensual adult sexual conduct in one’s home. And so, of course, if a right to privacy isn’t being acknowledged by Dobbs, people are wondering, what about these other cases that rely on a right to privacy like Lawrence v. Texas?

Marriage equality at stake?: Obergefell v. Hodges 

Wallis: So that takes us to the 2015 Obergefell v. Hodges ruling, which recognized the right to marriage equality. How was the right to privacy used as precedent in this case?

Tipler: The right to privacy in Obergefell was read together with the Equal Protection Clause, and it basically said that there is a right to marriage, which, to be clear, wasn’t established in Lawrence v. Texas, but comes from a number of these substantive due process cases, most explicitly Loving v. Virginia, which is about interracial marriage. So reading this right to marriage from the Due Process Clause together with equal protection arguments, a state can’t allow only straight couples to have access to this fundamental right of marriage — that that violates equal protection. 

In other words, you can’t exclude a particular class of people from this fundamental right. You can’t exclude same sex people from this fundamental right of marriage. So it’s reading equal protection and the Due Process Clause sort of together. I wouldn’t say it’s based so much on privacy, it is sort of based on privacy. But also, this line of cases that we’re talking about, a lot of it is based on autonomy, is the language that is being used, and the right to make choices about one’s life and how to live one’s life. And also included in Obergefell is language about individual dignity as well as autonomy, and how not having access to fundamental rights also damages dignity as well. 

Interracial marriage at stake?: Loving v. Virginia

Wallis: How does the Loving decision fit into all of this? And just to reiterate, that was the decision that recognized the right to interracial marriage. Does Dobbs challenge Loving? 

Tipler: I don’t think Dobbs challenges Loving, because Loving is built on equal protection and this due process right to marriage. I don’t think it challenges Loving for two reasons: One, I don’t think this Supreme Court is interested in getting rid of a right to marriage. I could be wrong. But I don’t see that as a concern. And two, the way that the Loving decision is written, the equal protection and rights to marriage arguments are not tied together in the way that they are in Obergefell. So I think that Loving could stand on equal protection grounds alone. And again, the Court hasn’t shown any interest in undermining that in a way that would undermine Loving. So I don’t think Loving is threatened by this.

Beyond abortion — what Dobbs could mean for contraceptive access, sexual privacy and marriage equality

Wallis: There seems to be a disconnect between justices on what precedent is affected and what’s not — Justice Thomas is saying Griswold, Lawrence and Obergefell should be reexamined, but Justice Alito’s majority opinion says the decision would not have the implications Thomas wants. What are the implications for these other three rulings?

Tipler: We don’t know, because this could be read in different ways. And what will happen to things like Obergefell and the other cases that Thomas is calling to overturn? To be very trite, but I think also very accurate, it just depends. It depends on what the Supreme Court does. This could be bracketed off and sort of intellectually sequestered as fundamentally different, and so it doesn’t have to affect other lines of doctrine around substantive due process. Or it could be pulled in to undermine and overturn that line of doctrine. But I doubt probably all of it, because some of what we’re talking about here is the conservative legal movement. 

And some of that tradition is quite important to conservatives who have very effectively organized to overturn Roe, and like Thomas notes, are interested in overturning some of these other decisions. But there’s splits in that movement as for how far it goes. It depends on what the Supreme Court does. It depends on if we have the same folks on the Supreme Court as we do in the future. It could potentially depend on the degree to which this decision undermines judicial legitimacy, which is already at an all-time low right now. And although I’m not sure that the majority cares that much about that, but certainly, Justice John Roberts does — he wrote a concurrence here, and Kavanaugh wrote a concurrence trying to limit this decision. And you could also say it could also depend on what effect this decision has on the upcoming election cycle and the results of that as well. 

Wallis: So now that we’ve gone over how these cases that Justice Thomas referenced are connected to Roe and Casey, how concerned should people be that contraceptive access, sexual privacy and marriage equality are on the chopping block?

Tipler: There is a debate among people who are puzzling through this opinion and thinking about Supreme Court dynamics, people are wondering and arguing over the degree to which people should be concerned about these prior decisions, about contraception and same sex marriage. And there are certainly really smart, well-informed people who are very concerned. There are other people who say, ‘Maybe we don’t need to be as concerned.’ I see it as not inevitable that it’s going to go one way or the other. But I think there’s good reasons to be concerned, and I think that people on the left should not have been shocked by this opinion. And that if they care about these things, they should have been far more concerned for the decades preceding this that led up to this moment. It didn’t come out of nowhere. It came out of political organizing. So, yeah, I think people should be concerned, as they should always be concerned about their rights.

When a right is sort of created by the Supreme Court, it can go away. And that’s one of the reasons that the Obama Administration was trying to get some of these LGBT protections through the legislature — though that’s a generous way to read that. Because if rights are created either purely by executive order or by a court, they may not have that same endurance as through the legislature. But I would say, with all rights, they’re not something that you could just take for granted. They are constantly the product of politics and political organizing.

One thing that a lot of people have been wondering from the political science side is, what are the organizing ramifications? What are the partisan ramifications of this? Overturning Roe has been this major mobilizer for the Conservative Party for decades. And there’s good evidence that that’s where the quote unquote ‘backlash’ came from, that it wasn’t some sort of grassroots response to Roe v Wade. It was the product of strategic organizing in order to change the composition of the Republican Party and bring Catholics into the Republican fold who had been more Democrats prior to that. So this raises this interesting political question of what happens from here? Does the Republican Party just keep passing all sorts of different abortion laws to mobilize their constituents? As we’ve seen, Oklahoma has multiple abortion laws that overlap with each other. It doesn’t seem like from a purely governance perspective, we need all of these abortion laws. 

So do Republicans just keep mobilizing around abortion and find new ways to do that? Because one of the criticisms of Dobbs is that Dobbs says, well, we just want this to be out of the courts’ hands. But there’s still so many things that need to be decided, it doesn’t seem likely to end litigation. There’s questions about, well, what about a miscarriage? We’re seeing some of these issues pop up already in Texas that’s had these significant restrictions longer than everyone else now. What happens when somebody has a miscarriage, and the fetus will not live, and yet the doctors do not want to provide an abortion because they think even though that that’s sort of the medical answer, because they’re worried that they’re going to break the law? 

So there’s all sorts of questions still that are potentially litigated. Is that where Republican organizing is going to go, or do Republicans say, ‘Okay, we’ve won this? And also maybe now Democrats are more organized than us because they’re really upset about this. So this isn’t a way to mobilize, to win elections, so do we instead turn to things like same sex marriage trigger laws, all the laws like that that were being passed before Roe in relation to abortion?’ Do they start moving to other issues?

Of course, the counterargument there is that same-sex marriage seems to be more widely accepted. But then there is a counterargument to that, too, which is that actually, Roe has been widely accepted and the majority of people do not want to overturn Roe. But that wasn’t an issue for Republican organizing, because the nature of our electoral institutions now in the primary system, with gerrymandering, is that Republicans are motivated and incentivized to go to the extremes of their party. And so same-sex marriage laws can be really appealing for that group and maybe contraception laws as well, although I think that seems even less likely. 

Wallis: Do you think they’d go after Lawrence? That seems like a really hard one to enforce.

Tipler: I think that could live under equal protection because the Texas law was a same-sex sodomy statute, only targeting same-sex couples. So it could stand solely on equal protection, not substantive due process. I think legally Lawrence can stand on equal protection, so conservatives could sort of coherently get rid of a lot of these due process decisions and still let Lawrence stand under equal protection if they wanted to.

Wallis: How do you even enforce anti-sodomy laws? Do you bust into someone’s bedroom?

Tipler: That was also, interestingly, a big part of the contraception decision as well. In the Griswold decision, activists had trouble getting that before the court, just like they did with Lawrence v. Texas, because of problems with enforcement.

Something that’s really interesting right now, I think, is the distribution of contraception and the ability of criminal surveillance has radically changed. And so contraception bans become much more enforceable potentially in all sorts of scary privacy ways. So that is fairly different now. 

But I do wonder, I don’t know, spitballing, but if there’s other mechanisms of enforcement for something like a sodomy statute that there didn’t used to be, with something like porn sites. Or there’s things that give clues, like the way that you can track all sorts of things on the Internet now or social media stuff like Grinder and other apps where people are either dating or hooking up in some same-sex relationship. Maybe it used to be hard to enforce, but it’s not anymore because you don’t have to go into someone’s home. 

Wallis: It’s starting to turn into a very kind of Orwellian situation.

Tipler: Yeah. And that’s the reason that there is the right to privacy. The people who are writing these decisions will be like, ‘It’s not turning into, this was the fundamental initial concern, was that you have a right to privacy.’ But yet with the way that we have our lives online, in the way it’s so visible, yeah, you’re right. It brings in another level of surveillance. But that has been the concern all along too. 

Wallis: Dr. Tipler, thank you so much for your insight.

Tipler: Thank you so much for having me.