No, the Logic in Dobbs does not Reverse Obergefell

[Note: the post below is a legal argument for why the logic in the Dobbs opinion does not overturn Obergefell or Griswold and the other cases defended by “privacy rights”, despite some cheeky rhetoric in the opinion. I wrote it because I saw smart people, including Erwin Chemerinsky, who said that it would. This seemed to me like a misreading. Since then, I talked to a guy I know at YLS, who said that received opinion there is that no, Dobbs does not actually overturn privacy rights, and the “rooted in history and tradition” test does not overturn them either, for basically the reasons I outline below. The reason everyone is saying that they’ll get rid of right to privacy is because we know Alito and Thomas want to already, so the cheeky rhetoric in the opinion will encourage activist litigation on Obergefell, which will probably win in a 6-3 court. So, this post is a little pointless. Of course, pretending that arguments matter at the Supreme Court is pointless always.]

A lot of apparently intelligent people are claiming that the leaked Supreme Court Opinion overturning Roe v. Wade threatens other important rules like Obergefell v. Hodges, but it does not.

It’s clear from the text of the opinion of Dobbs itself that whoever drafted the opinion wanted to be absolutely clear that it could not be used to argue for overturning Obergefell. They do that not only by saying, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion [including Obergefell]” but also by very, very carefully wording their argument so that it does not apply to Obergefell and Loving.

But people still think it’s a threat. The possible threat argument is this:

1. The decision in Dobbs proposes a strong limitation on inclusion of rights under the “Due Process” clause of the 14th amendment. It must turn on two questions: whether it is “deeply rooted in [our] history and tradition and whether it is essential to our Nation’s “scheme of ordered Liberty.”
2. The opinion explicitly says that all rights defended in the court must be based in the text of the constitution, and in particular, rights defended on 14th amendment “Due Process” grounds must proceed from a thorough investigating the concept of ordered liberty as included in the 14th amendment.
3. The opinion appears to say that all rights not explicitly enumerated in common law by the time of the ratification of the 14th amendment or at least a very long time ago cannot be included as “Ordered Liberty” protected as substantive due process.
4. Obviously, homosexuality and interracial marriage were not considered rights at that time.

But the appearance of (3) isn’t actually what Alito’s opinion expresses. The opinion is that, whatever unenumerated rights the 14th amendment protects, the arguments in Roe and Casey that include abortion under those rights are terrible, because of the totally unique question of the rights of fetuses. 

You can argue that fetuses have no rights. I personally might be receptive to such arguments, at least early-stage fetuses. However, both the Roe and Casey courts instead recognize that fetuses have valid rights, and that the state has a legitimate interest in defending the fetus’ rights, but they have to be balanced against privacy rights of the mother. They just decide with almost no argument at all exactly how those rights should be negotiated. That is what gives the Alito opinion its force. To argue that states can have legitimate interests in fetal rights, he only has to refer to precedent. Alito’s opinion remains agnostic as to whether fetuses have rights worth defending. 

But this is also why the decision does not threaten Obergefell or Loving, legally speaking.

Here are some important facts about the Dobbs opinion

1. The opinion only questions an application of the “right to privacy” that courts have previously decided is protected under the Due Process clause of the 14th amendment, but Obergefell wasn’t actually argued on vague privacy grounds, but instead by specific marriage rights established in Griswold and Loving.
2. The Dobbs opinion does not actually say at all whether the right to privacy is a legitimate right protected under the 14th amendment. Only, any right to privacy or autonomy is certainly not universal, and in particular does not include the right to an Abortion, because (as the court had previously determined) the state has a legitimate interest in protecting any rights that fetuses may have.
   1. It almost demands a legal test for being “deeply rooted in our National History and Tradition” that would require a right to have been accepted by the time of the ratification of the 14th amendment to get substantive Due Process protections. But it doesn’t. 
3. Stare Decesis still matters. The court does not say they can overturn existing cases willy-nilly. In particular, Alito lists five reasons that Stare Decesis can be overwhelmed in this particular case. Few apply to Loving or Obergefell. These are:
   1. The nature of the error made in Roe/Casey (that it is a point of constitutional interpretation).
   2. The poor quality of the reasoning in Roe and Casey.
   3. The unworkability and general silliness/vagueness of the rules in Casey.
   4. The ways that consistency with Roe and Casey have overturned other, pre-existing law.
   5. The weak standing these laws have actually had in practice.

One of these applies to Obergefell (maybe two, and at a stretch three) but two definitely don’t, and the one concern that does definitely apply (that Obergefell was decided based on constitutional interpretation) is the least decisive of the five. 

(2), and especially (2a) is the really scary one, but I promise I will explain later why it’s chill. 

Really, all three of these are chill. What is encouraging people to freak out is that Alito is a very cheeky boy.

The Case against Due Process Rights?

Alito keeps on hinting that a lot of purported substantive due process rights, including the right to privacy, might be bogus. He keeps hinting that the concept of “Ordered Liberty” has been totally abused, implying the cases grounded in privacy rights might be overturned. But he doesn’t actually say it. Here is some important text, and I think it well illustrates the ways Alito hints at a radical overhaul of court doctrine without explicitly saying it: 

On occasion, when the Court has ignored the “[a]ppropriate limits imposed by “respect for the teachings of history,” Moore, 431 U.S., at 503, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45, 25 (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.

This yells, “consult history more!” a lot, but it doesn’t actually say that anything that was considered illegal in 1868 is not protected under the Due Process clause. It just says that what was illegal in 1868 (along with other legal history) provides important evidence and guidance. I don’t think anyone is really going to dispute that. Precedent matters. But this doesn’t preclude the idea that the idea of “Ordered Liberty” might be very general, and that the Due Process clause might protect a lot of behaviors that jurists in 1868 did not realize, because some rights (perhaps including some rights to personal autonomy) might be very, very broad and hard to grasp.

So the decision really should not threaten Obergefell and we should all calm down, right?

Well, not quite yet. You see, Alito makes three confusing rhetorical moves that might ennervate a more anxious reader than I. 

First, he says that any rights protected under the 14th have to be balanced against any other rights, and that if there is a right to “personal autonomy” this right is not universal. This freaks people out, but put it in more general terms and it’s surely something you already agree with. 

Lots of rules restrict personal autonomy: child negligence laws, drug use laws, FDA decisions, licensing rules that restrict you can provide you medical care and even haircare! We balance personal autonomy against other competing interests all the time.

I think most of the people freaked out about this one are people physiologically incapable of considering that fetuses might have rights.

If fetuses don’t have any rights, then even a pretty narrow right to autonomy plausibly guarantees the right to an abortion. So, if Dobbs reverses the right to privacy, why would the right to privacy protect anything else? The obvious answer is: it protects privacy rights that do not run up too much against other valid concerns. Alito keeps saying that his decision does not say anything about privacy rights in general. It’s just that he’s moving abortions from the “taking contraception” class of behaviors to the, “snorting cocaine” class of behaviors. But people are apparently incapable of understanding this. 

Second, Alito has some alarming chatter about generality and support. First, Alito says that, “[privacy] criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” It’s alarming that he says, “generality” suggesting that something so general as a right to privacy would be indefensible, but the alternative meaning is that the right to privacy cannot be so general that it overwhelms others’ legitimate rights. He also says that Roe has “No Constitutional Support”. This might also suggest that a right to autonomy doesn’t exist, but it could equally mean that the primacy of the right to privacy over any rights a fetus might have lacks constitutional support. The first would threaten Obergefell, but the second wouldn’t. Since he says over and over again that he is not threatening Obergefell, charity demands we take him at his word and assume he means the latter. [That is charity of legal interpretation. Politically speaking, we should not assume that the latter is what he means].

The opinion is very, very carefully written to hint at the right to privacy being bogus without having any logic at all that commits the court to that position.

Is Alito Making Public Opinion in 1868 the Key to Due Process Rights?

Second, and more worryingly, he seems to suggest that all behaviors protected by substantive Due Process in the 14th must have been explicitly protected by common law in 1868. In particular, Alito argues that for a right protected by the 14th to be legitimate, it must be “Deeply Rooted in our Nation’s History and Traditions”. Then, he goes on for a few pages about how abortion was basically illegal from Camelot on down to the Nixon administration. Then he says, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”. That might suggest that anything that was illegal for a very long time definitely isn’t a right.

But that’s not quite right. It means that a specific right to Abortion is not deeply rooted, but it might be part of a broader right. Alito considers the idea that there might be broader rights that conflict with 19th century practice and are more important, including a right to privacy. Then he neither confirms nor denies that position:

In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim (which we accept for the sake of argument) that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mark(] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”505 U.S. at 848. Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.

You may note that while gay marriage has been conceivable for a long time, the presence of a large class of public, stable gay families that had no legal recognition was pretty unique to the early 2000s, and is relevant to the test noted above. My mans is working very, very hard to make sure that the Dobbs decision does not apply to Obergefell at all.

Some people have concluded that even though Alito isn’t explicitly overruling privacy rights, the legal test “Deeply Rooted in our History and Tradition” would put such a stringent demand on them that Obergefell would have to go. The best support for that is this passage:

A [historical] inquiry was undertaken in McDonald, supra, which held that the Fourteenth Amendment protects the right to keep and bear arms. The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoptionofthe FourteenthAmendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. 561 U.S, at 767- 777. Only then did the opinion conclude that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”

Then he says, 

Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution.

It’s not insane to interpret this as saying that to argue for rights to be included in Substantive Due Process, you have to find that they’re so “Deeply Rooted in our Nation’s History and Tradition”, that arguments “similar” to those above could be found for them, and this requires finding evidence for your opinion from before 1868. Alito definitely wants to encourage this reading. He is an extremely cheeky boy. But his own arguments deny it. First, when investigating whether abortion rights pass the “Deeply Rooted” test, he looks at evidence all the way up to 1973. Second, the Glucksberg case that he cites favorably did not turn on public opinion in 1868 and instead looked at evidence up to the present. Alito cites it approvingly, saying it, “surveyed more than 700 years of “Anglo-American common law tradition”. Since its evidence starts with Magna Carta (1215), Alito at least thinks that evidence up to 1915 counts lol. 

Of course, Alito might be saying that evidence from after 1868 matters, but you need at least some evidence from before that. He certainly wants to hint at that, but that can’t be the test he’s demanding. First, that would be a wildly specific test to just hint at instead of saying outright. But also, the “Deeply Rooted in our History and Tradition” is pretty normie boilerplate to say about due process. If he were trying to change a test that already had a decently established meaning, he would have to do more than hint.

In the end, the statements he makes that people interpret as threatening Obergefell boil down to two platitudes:

1. Rights protected under the 14th should have some basis in tradition and our notion of “ordered liberty”.
2. Privacy and autonomy rights are not some universal sanction to do whatever you want to whomever you want whenever you want.

He makes these sound scary, but they are not. (1) is scary if given a hyper-originalist interpretation, which certainly wants to encourage. But he doesn’t give it one, and if a lawyer tried to use Dobbs as a defense for a hyper-originalist interpretation of (1), they run aground on the fact that it denies the explicit statements in the opinion itself (that it is not overturning Obergefell, Loving, etc.).

Staring at the Decesis.

Another big defense for Obergefell is Stare Decesis: that we generally defer to the reasoning of prior courts. Stare Decesis is real and the opinion does not ignore it, just argues that in this case, it is overwhelmed by five factors:

In this case, five factors weigh strongly in favor of over. ruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

What does that mean:

1. The nature of the error – This is that the error was of constitutional interpretation rather than legislative interpretation, and that it’s on an important matter. Alito argues that it is more reasonable to overturn decisions of constitutional interpretation because the constitution is so hard to change. This is reasonable, and unfortunately it applies to Obergefell. 
2. The quality of their reasoning – Alito thinks that the reasoning in Roe was terrible. To be clear, he is right. Based on his other opinions, he personally thinks this applies to Obergefell. I doubt that Kavanaugh and Gorsuch do. Realistically, Obergefell was a way less crazy decision than Roe, and most of Alito’s arguments for why Roe’s reasoning was bad don’t apply to it.
3. The “workability” of rules imposed on the country – This is that the rules in Roe and Casey use vague terms like “Undue Burden” that have never been consistently applied [he is correct] and that there is constant activist legislation trying to monkey with exactly what the rules are. So, Roe & Casey aren’t really the kinds of functioning, legitimate laws that Stare Decesis is meant to protect. Of course, this is a little cheeky for a conservative lawyer to say, because it is the conservative legal movement that has done all this monkeying with Roe. Fortunately, this really doesn’t apply to Obergefell because marriage is well defined. It has to be for tax reasons! 
4. The disruptive effect on other areas of law – This is that enforcing Roe has caused other rules and principles to have to be overturned. For Obergefell, this has been a little true (remember that guy who didn’t want to make the gay cakes?) but it would be pretty easy to carve out religious excemptions while keeping Obergefell on the books, and to be honest I’m surprised the court hasn’t done that already.
5. The absence of concrete reliance – One reason that Stare Decesis matters is that people structure their lives around the expectation that laws won’t suddenly change. Casey had some reasoning about how people structure themselves emotionally and whatever around getting to have abortions, but, come on, that’s kind of bogus. Anyone can pretty adequately prepare for a reversal of Casey by not having sex. In contrast, a marriage is such a central organization of your life that negotiating the legal difficulties breaking them up is an entire profession.

So only (1) definitely applies to Obergefell, but it’s the least important. Then, (2) applies somewhat, and (4) applies a tiny bit but you could easily make those problems go away without changing Obergefell very much. (5) doesn’t, and instead militates that Stare Decesis is far more compelling on Obergefell than most SCOTUS decisions.

Wait what actually justified Obergefell?

Above, I have argued that overturning Roe doesn’t threaten Obergefell because it doesn’t deny that there may be a right to privacy/autonomy that is pretty general, just not so general as to include abortion.

But you don’t actually need a super general privacy right to defend Obergefell, you just need specific autonomies and specific privacy rights. So, as a quick aside, I want to note that the privacy/autonomy grounds that grounded Roe were very different from the arguments for Obergefell, Loving, Griswold, Eisenstadt, and Lawrence and you can drop the privacy right that decided Roe while keeping the other decisions.

If you are not up to date on all these debates, you might be wondering why I keep saying Roe was defended on grounds of a right to “privacy” but I’m clearly talking about something different: a right to “autonomy” or something like that.

You’re right! The “right to privacy” as it was purported to apply to Roe was a complete misnomer. Let us amble through the history of how that strange terminology came to be.

The fourth amendment includes “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. Based on this, and some other good stuff, there slowly emerged a common law rule that no laws can require unreasonable intrusion into intimate, personal life. To be a little flippant, the public has to stay out of your damn bedroom. This grounded Griswold (which let married couples use contraception) and Eisenstadt (which let everyone else). Later, similar logic applied to gay sex (Lawrence). These are pretty deep roots in our national history and tradition.

But then, in an extremely hand-wavey way, the Blackmun court argued in 1973 that these rights to freedom from excessive government intrusion into intimate life applied to abortion. This is kind of crazy because doctors are licensed by the state so medical procedures are obviously the state’s business, and no one at the time thought this argument made any sense. So they just kind of pretended that privacy and autonomy are the same thing (hence why we call the autonomy right a “right to privacy”).

Separately, the Obergefell majority invokes the arguments in Griswold and Loving to justify a special marriage right as something fundamental to liberty. The arguments in Obergefell for why marriage has to be defined to include same sex couples are very brief, basically terrible, and not really written to be persuasive (read it yourself!) But there is an argument that the opinions in Griswold and Loving established the tangible legal benefits from marriage as essential to liberty, and those arguments apply to gay and straight couples similarly. You can see these arguments in Roberts’ dissent (where he hints that he might accept a right to civil unions).

Roe, instead, points at a big sign saying, “autonomy” and calls it a day.

The courts in Obergefell, Griswold, Loving, Eisenstadt, and Lawrence made specific arguments for why the rights they outlined were extra fundamental, had grounding in precedent, and were uniquely the domain of the private individual. 

In Sum

So, summing it all up, the logic in Dobbs does not overturn Obergefell or cases based on privacy rights. 

Does this matter? Lolwut? No. Arguments don’t matter at the Supreme Court. Let’s be real; it’s a legislature. The legislature is now mostly Republicans, so a bunch of Republican decisions are gonna come down.

I’m guessing they won’t overturn gay marriage though, just because I think Gorsuch and Roberts are pretty conscious of popular opinion.