Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs
Joshua J. Schroeder, Rethinking Rights in a Disappearing Penumbra, 54 N.M. L. Rev. (2024 Forthcoming)
42 Pages Posted: 3 Mar 2023
Date Written: February 13, 2023
In 2022, Dobbs v. Jackson Women’s Health Org. overruled Roe v. Wade and Planned Parenthood v. Casey. The Dobbs Court suggested that future cases should similarly overrule other judicially protected rights including the right to marry interracially, to access contraceptives, and to have sex the way you like. The novel grounds Dobbs used to overrule Roe and Casey that might spread to other pro-rights case law was an ad hoc Janus v. AFSCME cost/benefit balancing test.
Prior to Dobbs, the liberal wing of the U.S. Supreme Court believed that the Court could use cost/benefit balancing tests to safeguard certain judicially protected rights. This balancing strategy was developed in Casey to do just that, but it has problematic roots in the eugenic era symbolized by Buck v. Bell. In fact, the balancing test rationale that destroyed Carrie Buck’s right to procreate was extended to deny rights to an administrative hearing generally in Mathews v. Eldridge.
Defenders of pro-rights balancing tests might characterize Dobbs’ use of a balancing test to destroy rights as trollish behavior. However, it is hard not to argue that the original “trolls” were the judges who punked Justice Powell by remaking the Buck and Mathews balancing strategies into a pro-rights regime. For nearly a century the U.S. Supreme Court attempted to fit reproductive rights into the ever shrinking penumbra left to it by Buck, and now after Dobbs that penumbra seemed to disappear altogether.
It is also hard not to feel that this disappearance was planned at a time that ensured that codified reproductive rights would also be disregarded if raised in litigation. In 2014, the Court allowed Wheaton College to enjoin the government to transgress codified reproductive rights without a clear case or statute to support the injunction. Perhaps Burwell v. Hobby Lobby’s use of codified religious liberty rights would have naturally led to a decision that supported the Wheaton injunction. However, the Court never followed up to confirm what law, if any, supported the Wheaton injunction.
This article is dedicated to the future of judicially protected reproductive rights in the United States. It will demonstrate how to face current challenges in Court by abandoning problematic balancing tests and penumbral theories for rights. It will explain ulterior grounds to assert reproductive rights according to the Fourth, Fifth, and Ninth Amendments under the right of life.
Keywords: rights of life, reproductive rights, Roe v. Wade, Dobbs, Janus, Boumediene, Hamdi, Shelby County, Coke
JEL Classification: K00, K10, K20, K30, K40
Suggested Citation: Suggested Citation