J. Scott Applewhite/AP Photo
The Supreme Court is seen on the first day of the new term, October 4, 2021.
The Mississippi abortion case presently before the Supreme Court, Dobbs v. Jackson Women’s Health, is already famous for threatening abortion rights and women’s equality. But the way Mississippi makes its anti-abortion arguments in Dobbs intensifies the dizzyingly high stakes. Mississippi’s attack on abortion includes a broadside on the general constitutional right to privacy that’s long underwritten not only abortion but also other sexual freedoms, from contraception to sexual intimacy itself. If Dobbs shrinks or eliminates abortion protections as Mississippi wants, will it end other constitutional privacy rights, too? How might such a decision, or even a step in that direction, galvanize progressive efforts urging a national reckoning with the Supreme Court’s powers?
In its main brief in the case, Mississippi condemns Roe v. Wade and the 1992 decision reaffirming it, Planned Parenthood v. Casey, as “irreconcilable with constitutional text and ‘historical meaning.’” This expresses an “originalist” viewpoint, emphasizing the Constitution must be interpreted based on its text and where necessary on its original meaning at the time it was enacted. Mississippi insists that the Constitution’s silence on abortion, combined with the lack of historical legal protections for it, means the 14th Amendment doesn’t safeguard the abortion right. This gloves-off originalism even maintains that Roe and Casey being non-originalist opinions “provides compelling grounds to overrule them.”
The Court may have the power and votes to endorse an uncompromising originalism aligned with pro-life positions in Dobbs.
Hammering its argument home, Mississippi denies that Roe may independently be preserved as an aspect of the constitutional privacy right. In Mississippi’s view, no “general ‘right of privacy’” exists. Like abortion, privacy isn’t expressly mentioned by the Constitution, and no legal history vindicates it around the 14th Amendment’s 1868 enactment.
This thinking strikes directly at Griswold v. Connecticut, the foundational right-to-privacy decision recognizing that married couples’ privacy rights encompass contraceptive choice. Griswold discovered this privacy right not in the Constitution’s text or history, but in “penumbras, formed by emanations” of various constitutional guarantees.
Unwilling to repudiate marital privacy in Griswold or its own stance that no general right to privacy exists, Mississippi offers Griswold a new originalist rationale keyed to Fourth Amendment protections of the home, as well as “our history and tradition of safeguarding ‘the marriage relationship’—which raises privacy interests ‘older than the Bill of Rights.’” At least for the cross-sex couples this formulation conjures, Griswold’s contraceptive protections are saved.
But what about the Court’s extension of Griswold’s privacy and contraceptive protections to unmarried heterosexuals, in Eisenstadt v. Baird? Mississippi’s brief in Dobbs doesn’t cite or engage Eisenstadt on its own terms, even though its originalist denial of a general privacy right—like its hostility to non-originalist rulings—condemns it.
On Mississippi’s theory, Eisenstadt’s flaw isn’t about where unmarried people have sex. It’s that their intimacies don’t involve “privacy interests” that are “older than the Bill of Rights.” Before 1868 and after, sex outside marriage was outlawed. Contraception, unmentioned by the Constitution’s text, was likewise legally regulated around that time, as in the 1873 federal Comstock Act. Adhering to Mississippi’s originalism, these textual and historical facts constitute “compelling” reasons for abolishing Eisenstadt’s privacy protections for nonmarital contraceptive choice.
Attacking Eisenstadt’s privacy and contraceptive protections along these lines implicates an even broader range of sexual freedoms. Others have spotlighted how Mississippi’s originalism is inconsistent with Lawrence v. Texas, recognizing same-sex intimacy rights. Lawrence, however, went beyond LGBT rights. For the first time ever, Lawrence formally vindicated the right of all consenting adults—heterosexuals included—to private sexuality, a right that heterosexuals practically enjoyed before that, but that Eisenstadt, with Griswold and Roe, at most, only implied.
Negating Lawrence in step with Mississippi’s originalism would thus invite traditional religious and morals-based opposition to all manner of nonmarital intimacies between consenting adults in private. Similarly, the same originalist logics would allow religious and moral understandings once again to limit marriage to male-female terms.
Of course, the Court might avoid this broad realignment of unenumerated 14th Amendment rights with religious and moral views by accepting Mississippi’s originalism only for abortion, claiming that it’s unique. That way, the Court could shrink or destroy Roe and Casey while leaving other intimacy rights untouched.
Those whose sexual freedoms escape immediate destruction might sigh in relief. But their sighs won’t stop other condemnations of Dobbs. Outrage on the left about a half-measured originalism that eliminates abortion rights and thus goes too far would likely meet outrage on the right that it doesn’t go far enough to give religious and moral views their due heed. This unusual left-right convergence, with diametrically opposed ends, might predictably agree that half-stepping originalism in Dobbs is political ad hockery, lacking intellectual integrity and heft. Hearing this, Americans who initially felt relief after witnessing the Court push abortion rights off a cliff—despite the national consensus broadly favoring them—might never feel the same confidence that the Supreme Court is Fort Knox to the gold of Americans’ constitutional freedoms. How secure will their intimacy rights really be if the Court does that to Roe?
A decision in Dobbs going whole hog on Mississippi’s originalism, thus eliminating or prefiguring eliminating 14th Amendment privacy-related rights, opens onto different prospects. These would likely include those who are already publicly charging the Court with political hackery, saying that a full-throated originalist ruling in Dobbs proves the need for deep and broad legal reforms of Supreme Court powers. A Court out of step with the nation in Dobbs—eliminating the right to abortion and the general right to privacy, with consequences for all the rights that hinge on it—might thus effectively box the Court’s own would-be defenders out.
The Court may have the power and votes to endorse an uncompromising originalism aligned with pro-life positions in Dobbs. But any ruling striking at abortion and the constitutional privacy right will inevitably destabilize, if not instantaneously eliminate, a broad range of deeply entrenched intimacy rights that have defined American ways of loving, and hence life. It will rupture—perhaps irreparably—the broad harmony of faith that ordinarily connects the Constitution, the Supreme Court, and the country it helps govern.
No Supreme Court justice considering the implications of Mississippi’s brand of originalism should miss this. Nor should any of us who must live under the Court’s rulings.
