On June 24th, 2022, the United States Supreme Court revisited Roe v. Wade in the controversial Dobbs v. Jackson’s Women’s Health Organization case. In a 6-3 decision, the Court found the Constitution does not confer a right to abortion because abortion is not among the liberties deeply rooted in America’s history and traditions, overturning Roe after almost 50 years.

The Dobbs decision reflects a fundamental shift in how the Court views constitutional privacy. While not explicitly mentioned in the Constitution, the right to privacy has long been considered an implied right established in Griswold v. Connecticut (1965), a landmark case that struck down a law prohibiting contraceptives for married couples. It is generally thought by legal scholars that critical privacy-based decisions such as Roe, Casey, Lawrence, and Obergefell started with Griswold and built upon one another, each relying on growing “zones of privacy.”

In Roe v. Wade (1973), the right to decide whether to bear or beget a child was determined to include abortion. Roe, and the subsequent case Planned Parenthood v. Casey (1992), laid the foundation for future privacy-based rulings under the principle of precedent or stare decisis (“to stand by things decided”). These cases include Lawrence v. Texas (2003), the right to sexual intimacy among same-sex couples, and Obergefell v. Hodges (2015), the right of same-sex couples to marry. In this way, privacy-based cases are interconnected in what legal scholar David D. Meyer refers to as a “constellation” of privacy rights.

After Dobbs, Justice Alito’s majority opinion assured “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, Justice Clarence Thomas wrote in his concurring opinion: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”. Therefore, at least according to Justice Thomas, Dobbs demonstrates a possible step towards overturning other privacy-based precedent and a shift in how the Court views constitutional privacy.

Privacy-based rights are strong when viewed as a piece of the constellation, but weak when viewed independently, since none are explicitly mentioned in the Constitution. Because privacy-based cases are interconnected it’s challenging, as law professor Rona Kaufman highlights, to distinguish privacy rights that remain in the constellation and those overturned in Roe. This is incredibly evident in Eisenstadt since it was Eisenstadt, not Roe, that acknowledged a woman’s right to decide whether to bear or beget a child. By attempting to isolate one privacy-based right (abortion), the Dobbs decision demonstrates a weakening of the constellation that supports almost all critical privacy-based Supreme Court cases.

In Dobbs, the Court referenced 19th-century laws criminalizing abortion, as well as opinions of 17th-century authorities, to show abortion is not rooted in the nation’s history and tradition. The Court cited Washington v. Glucksberg (1996)—a unanimous decision denying the existence of a right to assisted suicide because it’s not deeply rooted in the nation’s history and tradition. It’s important to note, however, that decisions made before 1996 did not manage to evade a new standard established in Glucksberg. Glucksberg merely confirmed and elaborated on an earlier version of the history and tradition test from Snyder v. Massachusetts (1934), which declared that a fundamental right must be “so rooted in the traditions and conscience of our people” that it was already fundamentally American.

There are three nuances of the history and tradition test that Dobbs ignores. The first nuance is that tradition can change, affirmed in Casey but originally established in Poe v Ulman (1961) when Justice John Marshall Harlan argued “tradition is a living thing”. How the Dobbs Court uses the history and tradition test ignores this changing nature of tradition and is similar to that of the majority in Bowers v. Hardwick (1986), a case that denied the fundamental right to sodomy. Both the Bowers and Dobbs court referenced 17th century legal figures and 19th century laws to show the right in contention was not rooted in history and tradition.

In his Bowers dissent, Justice John Paul Stevens argues against this manner of referencing old laws and authorities: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” He uses the example of Loving v. Virginia (1967), which legalized interracial marriage, when he goes on to say “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

Lawrence v. Texas (2003) overturned Bowers and established a second nuance of the history and tradition test: recent history matters. Lawrence majority opinion author Justice Anthony M. Kennedy acknowledged 24 states had anti-sodomy laws at the time of the Bowers decision, however, by 2003 “these prohibitions often were being ignored.” The original Georgia law considered in Bowers itself had been overturned by the state in 1998, demonstrating a shift in the “conscience of our people” discussed in Snyder. Kennedy also asserted “laws and traditions in the past half century are of most relevance,” meaning the history and tradition test should prioritize recent perceptions.

The third nuance of the history and tradition test, addressed in Obergefell, is that the test is not always consistent. Even in light of Glucksberg, the Obergefell majority asserted that the process of determining if a right is protected “has not been reduced to any formula”, and while Glucksberg may be relevant for certain rights (like assisted suicide), “it is inconsistent with the approach this Court has used in discussing other fundamental rights,” such as abortion.

All of these cases add nuances to the history and tradition test: (1) tradition can change, (2) laws and traditions from the last 50 years are most relevant, and (3) Glucksberg does not act as a strict formula for evaluating fundamental rights the Court has discussed in other ways. By prioritizing 17th to 19th-century laws and opinions, ignoring the way abortion has been an established right for 49 years, and treating Glucksberg as a strict formula, the Dobbs court completely ignores these nuances.

So, what changed? What made the Court ignore its precedent and return to a discredited version of the history and tradition test used in Bowers? By 2022 it was not the arguments that were different. As Justice Breyer writes “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed”. The disregard for precedent and the nuances of the history and tradition test, combined with the fact that the main change since Casey has been the composition of the Court, leaves privacy-based decisions relying on nothing more than the whim of the justices.

Additionally, Dobbs can be seen as a result of the Court’s departure from the separationist view, which created a “wall of separation” between church and state. A separationist view generally supports the Lemon Test, which requires all government action to have a secular purpose, to not help or hinder any religion, and to not foster excessive entanglement between religion and government.

However, recent decisions by the Roberts Court have demonstrated a shift to an accommodationist view, which requires accommodations or special treatment for religion. In Kennedy v. Bremerton School District (2022), the Court sided with a public high school football coach who prayed with players after every game and, as written in the decision, “abandoned” the Lemon Test, replacing it with a consideration of “historical practices and understandings”.

The six justices in the Dobbs’ majority—Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and John Roberts—are all known for their conservative Christian beliefs. The conservative composition of the Roberts Court is intentional. Donald Trump’s 2016 promise to appoint “pro-life judges” who would overturn Roe helped him gain the support of white evangelical Christians. Trump’s appointment of three Supreme Court justices solidified the 6-3 conservative majority necessary for Dobbs.

As the Court’s religious and conservative makeup changed, so did the way the Court views and values fetal rights, a shift evident in the overturning of Roe. The original decision in Roe and Casey acknowledged that states had a legitimate interest in protecting “potential life.” However, this interest could not justify any restriction on pre-viability abortions. Under Dobbs, the Court uses the vital state interest to justify abortion regulations at any point of the pregnancy, equating the rights of a pre-viability fetus to those of the mother.

This conservative shift and dilution of the constellation of privacy rights indicates that Obergefell may be threatened. Recently, Southern Baptists have overwhelmingly called for a ban on gay marriage after a vote involving more than 10,000 church representatives at the annual meeting of the nation’s largest Protestant denomination. President Trump has also previously responded “I would strongly consider that, yes” when asked if he would appoint judges to overrule Obergefell. He has publicly affirmed his support for “traditional marriage”. Trump inherited a record number of empty seats in 2016 and repeatedly appointed judges with an anti-LGBTQ agenda to lifetime seats on the judiciary.

Furthermore, the same justices who dissented in Obergefell—Roberts, Alito, and Thomas—all remain on the bench today. Roberts and Alito argued that because same-sex marriage is not mentioned in the Constitution, the Court has no authority to require states to recognize or license it. Thomas warned the ruling infringed on religious liberty by preventing states from balancing moral and religious interests.

The Dobbs decision demonstrates a Court willing to abandon the nuances of the history and tradition test and only acknowledge rights grounded in moral religious tradition. When federal privacy protections depend on the personal worldview of the Court rather than a stable constitutional foundation, those rights become vulnerable to changes in the justices’ ideologies. The shift matters because it leaves the privacy constellation that supports decisions like Griswold, Lawrence, and Obergefell significantly weakened. Obergefell specifically stands on less precedent than Roe did, is not rooted in the history the Court now prioritizes, and was already opposed by several justices who still sit on the bench.

This, then, brings us to solutions. If the public can demonstrate support for same-sex marriage through state level protections, it will be increasingly more difficult for the Courts to argue that same-sex marriage is not “so rooted in the traditions and conscience of our people”. One of the points Roberts made in his Obergefell dissent is that marriage is traditionally defined as being between a man and a woman, which is why the Constitution protects interracial marriage but not same-sex marriage. But, with the legalization of same-sex marriage people have now built their lives around a new definition, one that States should codify into law. Citizens, legal professionals, and legislators should emphasize the way Obergefell generated “concrete reliance interests,” an important factor when determining whether to overturn precedent.

That means it is up to states to maintain protections. Codifying same-sex marriage, repealing dormant bans, and recognizing the concrete reliance interests created by Obergefell are necessary to ensure our privacy rights don’t rise and fall with changes in the Court’s composition.

Unfortunately, even if states build the protections that Dobbs has shown are necessary, something has already been lost. A right that once rested in a coherent privacy framework now survives only through state-level patchwork, and a Court that long claimed to safeguard individual liberty has shown just how quickly precedent can be discarded. As Justice Sonia Sotomayor asked during Dobbs oral arguments, “Will this institution survive the stench that this creates in the public perception—that the Constitution and its reading are just political acts?”

I’m not so sure it will. We are watching an institution that once prided itself on stability and restraint move toward decisions driven less by constitutional principles and more by the religious views of the majority. Dobbs represents a real loss that will continue to shape the future of privacy rights in the United States.

Edited By: Kyle Dixon

Photo Credit: Frypie, Wikimedia Commons