Curbing Reversals of Non-Textual Constitutional Rights

Abstract

With the June 2022 issuance of Dobbs v. Jackson Women’s Health Organization, one of the most impactful cases in U.S. history, the Supreme Court renounced nearly a half-century of constitutional guarantees to abortion access. The Court’s stunning “rights reversal,” justified by the majority’s originalist assessment that prior jurisprudence was imprudently decided, places at immediate risk multiple other non-textual rights (e.g., to contraceptives, sexual intimacy, marriage equality). These privacy interests are already under political and legal attacks in several jurisdictions. As illustrated in response to Dobbs, neither the President, Congress, nor progressive states are willing, well-positioned, or poised to ameliorate existing or future judicial reversals of rights. Who can allay the threat of diminishing privacy interests or other non-textual rights? Why, the Supreme Court itself. Under principles of “constitutional cohesion,” which recognize the close interplay of rights and structural components (e.g., separation of powers, federalism, and preemption) within the U.S. Constitution, the Dobbs Court’s “rights-centric” approach to withdrawing non-textual rights faces significant challenges. Ultimately, structural challenges set definitive limits on additional judicial interpretations of non-textual rights and present opportunities for their partial reinstatement through the very Court that seeks to strip them away from Americans.

Keywords: reproductive rights, abortion, constitution, due process, equal protection, Dobbs, equality, sexual intimacy, marriage, contraception, legal, rights, liberty, reversal, health, public health, Supreme Court, Alito, Breyer