Obviously there are a lot of opinions here, but I want to make sure people actually thought about what is happening with this ruling. In Dobbs v. Jackson, Roe v. Wade was overturned - that previous court decision was based on the "right to privacy". What is the right to privacy?
The Right To Privacy
It doesn't exist
Why Americans Think They Have One
There were some important precursor cases that would matter for a thorough deep dive, but I'll only mention them briefly here:
- Weems v. the United States, 1910 - the constitution may need to be interpreted to modern times
- Meyer v. Nebraska, 1923 - there must be a good reason to insert the government between parents and their children
- Pierce v. Society of Sisters, 1925 - private elementary schooling must be permitted in the context of compulsory education
In 1928, Supreme Court associate Justice Louis Brandeis cited a lot of things in his famous dissent to the court's decision in Olmstead v. United States, but mostly built on his own work creating a "right to privacy". Essentially, it should seem obvious given the combination of rights granted in the constitution (especially the fifth, fourth and fourteenth amendments to the Constitution of the United States of America) that citizens of the United States of America have a right to privacy
This line of reasoning did not sway the majority of the court in Olmstead. Instead, the court found that as there was no mention of telephones in the constitution, it's perfectly acceptable for the government to wiretap whomever they wish and use the proceeds against them in court. Constitutional protections against search and seizure applied only to places, not people. So long as the government is physically outside your home or business when collecting evidence, there is no need for a warrant - the "Trespass Doctrine"
That might sound strange and unreasonable to many Americans. Weren't they just outraged that the government was doing exactly that when Snowden revealed it? If the supreme court already confirmed it's fine and we knew the government was doing it, why the shock and horror?
Olmstead was reversed in 1967. The court's decision in Katz v. United States held that the protection against search and seizure applies to citizens instead of places. The trespass doctrine made no sense in our modern, electronic world. It was replaced with what we now call the "Katz test" as taken from associate Justice John Marshall Harlan II's concurrence:
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable
This is what most Americans still think of; a reasonable expectation of privacy is the right to privacy. We take it for granted. It helped firm up some of the recent court decisions and provided a simple framework for future cases
Built On Shaky Foundations
A few important "rights" that were derived from this "right to privacy":
- Married Couples May Use Contraception - Griswold v. Connecticut, 1965
- Interracial Couples May Marry - Loving v. Virginia, 1967
- Wiretaps Require A Warrant - Katz v. United States, 1967
- Abortion (with definitions by trimester, changed to viability in Casey) - Roe v. Wade, 1972
- Individuals May Use Contraception - Eisenstadt v. Baird, 1972
- Homosexuals May Fornicate - Lawrence v. Texas, 2003
- Homosexuals May Marry - Obergefell v. Hodges, 2015
These are rights that were clarified above and beyond the inferred right to privacy. Marriage is a private, personal decision. What consenting adults do in their bedrooms is none of the government's business. Whether a woman is committing murder or not with an abortion depends on the ability of the aborted to live without the mother (can't kill something that can't live). Warrants are required for the government to spy on citizens. All of this comes from inference. Nowhere is any of it spelled out in the constitution
Why Dobbs v Jackson Matters
Associate Justice Samuel Alito writes in the court's decision:
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision
For many, that is a frightening statement. In the next sentence, there is an attempt to temper what is sure to be a massive storm:
any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Alito acknowledges that Americans may get some rights not explicitly defined in the constitution, but only if the court finds them to be traditional. In a vacuum, this might seem reasonable, but it wasn't previously reasonable to make a phone call without the government listening in on it as phone calls weren't "deeply rooted in this Nation's history". It isn't just access to abortion at risk - all rights derived from the right to privacy, and the right to privacy itself have been put up for grabs
Clarification to this effect was provided by Associate Justice Clarence Thomas in his concurrence:
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U.S. 479 (1965) (right of married persons to obtain contraceptives)[1]*; Lawrence v. Texas, 539 U.S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of Thomas, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous”
Justice Thomas understood they were removing a "right" and sees it as a potential opening to remove further "rights" - it has been plainly stated and the invitation published. Americans count on "rights" that don't technically exist. The underpinnings of those rights has been deemed invalid in Roe and suspected to be invalid in other cases
Conclusion
While the right to privacy may be codified into law, laws change with the whims of politicians. Constitutional amendments have become increasingly difficult to pass. Many might be ok with particular rights being taken from particular people - people from a different gender, people with different beliefs, people in a different state, people with a different sexual orientation, or people that use contraceptives. Perhaps they hope to pull the brake just before one of the rights they exercise is taken
Without a right to privacy, they won't have much chance of success
For this reason, and so many more, I dissent
