In future cases, the Supreme Court continued to recognize that the increased protection of privacy rights was the result of a thorough review of the process, while maintaining that it was consistent with the rejection of Lochner because it only applied to “fundamental” freedom interests. As a result, the court’s doctrine required a distinction between “fundamental” interests of liberty, for which government interference was presumably unconstitutional, and ordinary interests of liberty, which the government was presumably free to restrict so long as it acted rationally.
The judges continued to struggle over which freedoms were considered fundamental. A narrower test favored by more conservative judges limited fundamental rights to only those rights that were clearly set out in the text of the Constitution or would have been considered essential by the time the Fourteenth Amendment was passed in 1868. roe and other cases, looked more at a contemporary assessment of the great commitment to the individual. Yet another approach, proposed in cases such as: Lawrence v. Texaslooked at evolving understandings of essential personal freedom, as evidenced by the popular consensus.
although roe remained controversial in legal theoretical circles, in part because of its expanded understanding of fundamental rights and because of the surprising specificity of its trimester framework for reviewing abortion laws, it was confirmed in Planned Parenthood v. Casey in 1992 in a joint opinion that seemed to confirm an understanding of substantive due process evolving with popular values. A series of historic cases over the next quarter-century seemed to anchor this notion. Specifically, the court extended the same privacy principle to: protect the right of homosexuals to enter into intimate relationships and Marry based on the recognition of an “emerging awareness” of their equal claim to dignity in very important relationships, despite the lack of historical protections for these rights.
It was on this landscape that dobbs meant, of course, an abrupt reversal. While the court did not outright reject the concept of a substantive due process, it rejected any basis for recognizing “fundamental rights” other than in the text of the Constitution or in deep-rooted historical traditions. Because the right to abortion was not in the text, and because the authors of the Fourteenth Amendment in 1868 did not consider abortion a fundamental freedom, the court ruled that there was no basis for special constitutional respect for a woman’s right to choose. . Instead, the majority considered the right to make decisions about pregnancy an ordinary freedom of the same rank as everyday choices about lifestyle, trade or recreation, subject to freewheeling regulation as long as the government acted rationally.
So go ahead dobbs‘ would include fundamental rights entitling to strong constitutional protections over a narrow swath of freedoms so universally respected over time that there is little chance of political interference anyway.
The “privacy” right whereby dobbs purpose is actually a right to personal autonomy: a right, such as dobbs say it, “to make and implement important personal decisions without government interference.” And in dobbs, that right has shrunk considerably. Therefore, many suggest that the following rights in their sights could be those of contraception or same-sex marriage, as Judge Thomas openly encouraged in his assent: if these rights are not found in the text of the Constitution and if the authors of the Fourteen Amendment had can’t imagine them in 1868, it’s not clear why they would stand on firmer groundunder the logic of dobbs†
A “Very Different” Kind of Privacy: “The Right to Protect Information from Disclosure”
The impact of the court’s judgment in dobbs and its implications for autonomy rights in the name of privacy are seismic, but dobbs does not mean the end of legal protections for other forms of privacy, both under the Constitution and under other laws. For example, the text of the Fourth Amendment makes it clear that the government cannot freely search houses without a warrant. The dobbs opinion doesn’t change that.
dobbs also says nothing about what Justice Alito called a “very different” kind of privacy in his majority view, “the right to protect information from disclosure.” It may seem like a thin distinction, as both autonomy and disclosure interests stem from a common root in privacy in the sense of “right to be left alone,” but constitutional autonomy rights and the right to informational privacy have different objectives and often different legal bases. .
