The Supreme Court just essentially overturned Roe. But the battle is far from over.
We will see enormous pressure on President Joe Biden to “do something” in the aftermath of this decision. The problem is that he has limited options. He could issue an executive order providing for abortion services on federal land, but when and if there is a Republican president and a Republican attorney general, we could potentially see federal prosecutors indict abortion providers who performed abortions on federal land.
While those are the primary legal battle lines we can expect with respect to abortion rights, we also have to ask what the reasoning and conclusion of Dobbs mean for our other constitutional rights. Based on the reasoning in Dobbs, a whole host of other constitutionally protected rights including same-sex marriage, interracial marriage and even the ability to obtain contraception could now be on the chopping block.
The majority’s conclusion in Dobbs that the right to an abortion is not protected under the Constitution rests on the fact that abortion is an unenumerated, or unwritten, right. And, of course, this is true. While some rights, such as the First Amendment’s freedom of speech and freedom of religion, are written in the text of the Constitution, others are not.
We, in fact, have a long constitutional tradition of protecting rights that are not specifically listed in the Constitution. For instance,in a famous case called Griswold, the Supreme Court concluded that the Constitution includes protection for an unwritten right to privacy and that this right to privacy allows married couples to obtain contraception.
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