Historical Precedent

While reviewing the constitutionality of Mississippi’s Gestational Age Act in Dobbs v. Jackson Women’s Health Organization, the Supreme Court rekindled the age-old debate over personal freedom and the state’s authority to regulate it. The Court relied on “history and tradition” to hold that the Constitution, specifically the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, does not confer a right to an abortion. Thus, they returned abortion laws to state legislatures.

 The aftermath of the Dobbs decision, and the rejection of the Due Process Clause as a legal basis for the right to an abortion, brings into discussion other landmark Supreme Court cases like Griswold v. Connecticut and Eisenstadt v. Baird that were decided on similar grounds to Roe v. Wade. 

Griswold, a landmark Supreme Court case, utilized the penumbra theory to establish a constitutional right to privacy, allowing married couples and their doctors to make private decisions about the use of contraception. Plaintiffs Estelle Griswold, executive director of Planned Parenthood in Connecticut, and C. Lee Buxton, a gynecologist, sued after they were convicted under an 1872 Connecticut law prohibiting the use or encouragement of birth control. In a 7-2 decision, Justice Douglas, writing for the majority, held that the Constitution safeguarded a fundamental right to privacy, including the use of contraception within marriage, overturning the Connecticut law. The ruling mandated that any law regulating contraception for married couples must serve a compelling government interest. Griswold set a significant precedent for protecting reproductive rights, influencing Roe and Casey, as well as several landmark marriage rights and sodomy cases. Roe extended the right to privacy in contraception to abortion, citing Griswold’s protections. 

Eisenstadt v. Baird expanded Griswold by extending the right to use contraception to unmarried individuals in 1972. William Baird was convicted in Massachusetts for giving contraceptives to unmarried individuals, which broke state law. Many states at the time outlawed the distribution of contraceptives to unmarried couples or required a doctor’s prescription before this ruling. Baird challenged the constitutionality of such restrictions. In a 6-1 ruling, the Supreme Court ruled in favor of Baird. Written by Justice Brennan, the majority opinion extended the right to use contraception established in Griswold to unmarried individuals based on the Equal Protection Clause of the Fourteenth Amendment. Following the strain of precedent set by Griswold, Eisenstadt v. Baird established the principle that individuals, regardless of marital status, have a fundamental right to make private decisions about their reproductive health. It established a precedent for later reproductive cases, like Roe. Ultimately, both the Griswold and Eisenstadt Supreme Court decisions lend supporting evidence to the argument that individuals have a constitutional right to privacy in matters of reproductive choice.

The majority opinion in Dobbs rejects the argument that other Substantive Due Process precedents like Griswold and Eisenstadt are at risk. However, in his concurrence, Justice Clarence Thomas writes that in future cases the court should reconsider Substantive Due Process precedents to correct any errors established. The majority pushes back against Justice Thomas and, instead, emphasizes that the Dobbs decision examines the constitutional right to abortion and that nothing in their opinion should cast doubt on precedents that do not concern abortion. While Substantive Due Process has been used to incorporate and expand basic rights to the American people, the majority argues against its application to abortion because, in their view, abortion is not fundamental to liberty.

Implications 

By disregarding stare decisis, Substantive Due Process, and the Equal Protection Clause, the Dobbs Court relied on an originalist approach to constitutional interpretation. Originalism is a theory of interpreting a legal text as it was understood at the time of its adoption. The combined dissenting opinion of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan criticized the originalist approach and argued that the basis for overturning Roe can theoretically be applied to the use of contraceptives, same-sex marriage, and private intimacy because, like abortion, the words contraception, sex, and marriage appear nowhere in the Constitution.

In Griswold, the Supreme Court established a powerful precedent that reproductive health decisions belong to the people making them—not the government. The Dobbs court broke from stare decisis, and, despite citing Brown v. Board of Education, wrote a decision that disproportionately adversely affected minority childbearers of protected classes. When the Court overturns precedent and breaks from stare decisis, it has significant implications for the Court’s legitimacy as a democratic institution. The Supreme Court’s authority depends on its perceived legitimacy. When the Court acts as a political force rather than an impartial arbiter of the law, its actions undermine the legitimacy of the institution. Even though Griswold and Eisenstadt interpreted that the Constitution implies protections for the right to privacy, Dobbs departed from this understanding and suggests that the Court may reverse any prior decision it understands as egregiously wrong, raising alarm about the future for reproductive freedom, same-sex marriage, and other rights protected by the Substantive Due Process Clause.

Maggie McGinnis is from Appleton, Wisconsin, studying Political Science, Cultural Anthropology, and Human Rights.