How Dobbs Threatens to Torpedo Privacy Rights in the US

In future cases, the Supreme Court continued to acknowledge that its heightened protection for privacy rights was a product of substantive due process review while insisting that this was consistent with the rejection of Lochner because it applied only to “fundamental” liberty interests. As a result, the court’s doctrine required differentiating “fundamental” liberty interests, for which government interference was presumptively unconstitutional, from ordinary liberty interests, which the government was presumptively free to limit as long as it acted rationally.

The justices continued to struggle over which liberties ranked as fundamental. A narrower test favored by more conservative justices limited fundamental rights to only those that were clearly set out in the Constitution’s text or would have been regarded as essential at the time the Fourteenth Amendment was enacted in 1868. A more expansive approach, employed in Roe and other cases, looked more to a contemporary assessment of the profound stakes for the individual. Yet another approach, suggested in cases like Lawrence v. Texaslooked to evolving understandings of essential personal liberty as evidenced by popular consensus.

Although Roe remained controversial in legal theory circles, in part for its more expansive understanding of fundamental rights and for the surprising specificity of its trimester framework for reviewing abortion laws, it was upheld in Planned Parenthood v. Casey in 1992 in a joint opinion that seemed to confirm an understanding of substantive due process that evolved with popular values. A line of landmark cases over the next quarter-century seemed to entrench this understanding. In particular, the court extended the same privacy principle to protect the right of gay people to form intimate relationships and to marry based on recognition of an “emerging awareness” of their equal claim to dignity in profoundly important relationships, notwithstanding the lack of historical protection for these rights.

It was on this landscape that Dobbs signaled an abrupt reversal of course. While the court did not reject the concept of substantive due process outright, it rejected any basis for recognizing “fundamental rights” other than in the text of the Constitution or in deeply rooted historical traditions. Because the right to an abortion was not in the text, and because the framers of the Fourteenth Amendment in 1868 did not regard abortion as a fundamental liberty, the court ruled that there was no basis for special constitutional respect for a woman’s right to choose. Instead the majority found the right to make decisions concerning pregnancy to be an ordinary liberty of the same rank as mundane choices about lifestyle, commerce, or recreation, subject to freewheeling regulation so long as the government acted rationally.

Going forward, therefore, Dobbs‘approach would contain fundamental rights entitled to strong constitutional protection to a narrow band of liberties so universally respected across time that there would be little likelihood of political interference in any event.

The “privacy” right at which Dobbs took aim is really a right of personal autonomy: a right, as Dobbs put it, “to make and implement important personal decisions without governmental interference.” And in Dobbs, that right shrank considerably. It is why many suggest that the next rights in the crosshairs could be those to contraception or same-sex marriage, as Justice Thomas openly encouraged in his concurrence: If these rights are not found in the text of the Constitution and if the framers of the Fourteen Amendment could not have imagined them in 1868, it’s not obvious why they would stand on firmer ground under the logic of Dobbs.

A “Very Different” Sort of Privacy: “the right to shield information from disclosure”

The impact of the court’s opinion in Dobbs and its implications for autonomy rights in the name of privacy are seismic, but Dobbs does not spell the end of legal protection for other forms of privacy, both under the Constitution and other laws. It is clear from the text of the Fourth Amendment, for example, that the government cannot freely search homes without a warrant. The Dobbs opinion doesn’t change that.

Dobbs also doesn’t say anything about what Justice Alito called a “very different” sort of privacy in his majority opinion, “the right to shield information from disclosure.” It may seem a thin distinction, given that both autonomy and disclosure interests spring from a common root in privacy in its “right to be let alone” sense, but constitutional autonomy rights and the right of informational privacy have different objectives and often different legal foundations .

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