SCOTUS Handed Conservatives a New Weapon to Attack Your Rights

Conservative judges are coming for birth control, same-sex marriage, and more.

Close-up image of a printed copy of the Supreme Court decision in Dobbs v. Jackson Women's Health Organization.
Just a year out from the Supreme Court decision in Dobbs v. Jackson Women's Health Organization, conservative lower court judges across the country are already weaponizing it to erode other fundamental rights. Austen Risolvato/Rewire News Group

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One year out from the demise of Roe v. Wade, federal courts have mostly used the opinion in Dobbs v. Jackson Women’s Health Organization for precisely what you might expect: to uphold anti-abortion laws that would never have passed muster when Roe was good law.

But the Supreme Court’s conservatives—particularly Justice Samuel Alito, who penned the majority opinion, and Justice Clarence Thomas, who penned a concurrence—are culture warriors, and they’re not going to stop here. Nor are conservative plaintiffs, lawyers, and judges.

Dobbs has given them the language and the ethos to refuse to expand or preserve rights. That’s because the holding in the case was grounded in the idea that if something wasn’t a clearly established constitutional right at the founding of the country—or one explicitly created after the Civil War via the 14th Amendment—it simply doesn’t exist. With that, it’s easy to wipe out nearly the whole of modern constitutional rights simply by, as Alito did in his majority opinion, writing a book report on what the laws were over 150 years ago.

It’s an absurd way to run a country, but it’s a great way if you want to severely curtail the rights of everyone who isn’t a conservative white straight Christian.

In a move that was too cute by half, Alito wrote that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” It’s meant to provide a shield against any concerns that Dobbs was only the beginning and assert that abortion is unique because it involves “potential life,” but other things conservatives hate, like same-sex marriage and birth control, will be just fine.

To put it charitably, these assurances are lies—and not even particularly good ones considering the human and civil rights of a large swath of the population are on the line.

The right to same-sex marriage

Even prior to the fall of Roe, Alito had made clear there are other rights he’d like eliminated. In his dissent in Obergefell v. Hodges, which legalized same-sex marriage, he complained that the decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” In other words, just like post-Dobbs laws about abortion, Alito wants to allow conservative states to vote on the fundamental rights of same-sex couples. This scheme, of course, allows for entirely outlawing the right to marriage.

Similarly, Alito gave a speech to the Federalist Society shortly after the 2020 election, complaining that “you can’t say that marriage is the union between one man and one woman” because it might be construed as “bigotry.” This is not someone who intends to leave same-sex marriage alone.

While Alito pretended to believe that Dobbs would be limited to abortion only, Thomas did no such thing. In his concurrence, he said the Supreme Court should reconsider the exact cases Alito says are safe:

  • Griswold v. Connecticut, which created the constitutional right to access birth control and grounded it in the larger constitutional right to privacy;
  • Lawrence v. Texas, which held that criminal punishment for consensual sexual activity between members of the same sex was unconstitutional;
  • And, of course, Obergefell.

And as reconsideration of these landmark cases begin to wind their way through the courts, conservative judges will use the framework in Dobbs to systematically take away critical constitutional rights.

The right to contraception

One particularly egregious Trump appointee, U.S. District Judge Matthew Kacsmaryk, already used Dobbs to justify his anti-contraception ruling in Deanda v. Becerra. Kacsmaryk ruled that Title X, which funds clinics that provide affordable birth control and reproductive health care to people with lower incomes, infringed on the constitutional rights of parents to “direct the upbringing of their children.” With that, Kacsmaryk threw out the Title X provision that allowed contraception to be dispensed to minors without parental consent. In doing so, he made clear he has more in store.

Kacsmaryk acknowledged that a previous Supreme Court had relied on the constitutional right to privacy to say a state couldn’t issue a blanket ban on distributing contraception to minors. Then he pivoted to smugly pointing out that the correctness of that holding is now in doubt because it relies upon earlier privacy cases about birth control, including Griswold, approvingly citing Thomas’s concurrence in Dobbs that Griswold is “demonstrably erroneous.”

Kacsmaryk also quoted Dobbs in holding that a parent’s right to consent to their child’s use of birth control is “deeply rooted in this Nation’s history and tradition.” To be sure, he doesn’t have much support for that—he doesn’t even bother to make the trip through the history of the 1850s like Alito did in Dobbs. He just declares that back in the day, minors couldn’t generally consent to major life decisions, and therefore that means that they certainly can’t now.

‘State-created danger’ doctrine

The bad uses of Dobbs aren’t limited to the arenas of reproductive rights or privacy. Earlier this year in Fisher v. Moore, the Fifth Circuit Court of Appeals, which is definitely the most conservative—and arguably the worst—of the federal circuit courts, used Dobbs to justify granting qualified immunity to school officials who repeatedly failed to protect a cognitively and physically disabled student from sexual assault by another student who was a known predator who had told school officials he wanted to be a rapist when he grew up. For the school officials to be liable, the Fifth Circuit would have had to adopt the “state-created danger” doctrine.

That doctrine is an exception to a general rule that government employees and officials aren’t liable for the bad acts of a private party. If the government official was responsible for a danger to someone in their care, such as a public school student, they could be held liable.

Rather than looking to other circuits that have adopted the doctrine, the Fifth Circuit panel invoked Dobbs’ “deeply rooted” language and stated the Supreme Court had made “recent forceful pronouncements signaling unease with implied rights not deeply rooted in our Nation’s history and tradition.”

How overturning abortion is the vehicle for more harm

Dobbs also gives judges language to ignore how their work affects the public, which seems to be a core principle of the conservative jurists. In United States v. Rahimi, the Fifth Circuit threw out a federal law that required people who had a domestic abuse order for protection against them to surrender their guns. So, known abusers get to keep their weapons.

In his concurrence, Judge James Ho, who is basically a Twitter troll in a robe, quoted Dobbs, saying, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” Judges like Ho definitely don’t want to respond to the fact that when abusers have firearms, they are five times more likely to kill their partner. But Dobbs allows Ho and his ilk to float serenely above it all, utterly unconcerned about the consequences of their actions.

The problem isn’t just that Dobbs exists. It’s that willing it into existence was a decadeslong project of conservative plaintiffs, attorneys, and judges. Take Jonathan Mitchell, for example. He was the architect of SB 8, Texas’ six-week abortion ban that predated Dobbs. To shield the government from constitutional claims, Mitchell invented the bounty hunter-style enforcement mechanism that lets private citizens sue anyone who “aids or abets” an abortion.

In his amicus brief in Dobbs, Mitchell was already taking aim at both Lawrence and Obergefell, sneeringly calling those cases “the court-invented rights to homosexual behavior and same-sex marriage” and stating there was no source of law that could be invoked “to salvage their existence.” Additionally, the federal courts are now stuffed with Trump appointees put there precisely to validate these sorts of arguments. Litigating over any sort of privacy rights will eventually run headlong into a wall of zealots eager to drag us back to the 1800s.

In their dissent in Dobbs, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote that “the Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.” That’s the objectively correct view, as to do otherwise is to simply allow the people who had all the privileges and power 200 years ago to be the only people who have those privileges and powers today. But that’s exactly what conservatives want and where they have been headed for decades. Dobbs is just the latest, greatest vehicle to help them get there.