'Scout's Honor': Justices Clash Over Pledge Abortion Ruling Won't Revoke Other Precedents

Friday's decision overturning Roe. v. Wade raised concerns that decisions allowing privacy, birth control and same-sex marriage could be next.

While the future for many women seeking abortions in a post-Roe nation looks grim, it is the future of other constitutional rights sharing a foundation similar to the now-revoked abortion right that provoked sharp disagreements among the justices in Friday’s abortion ruling.

What about cases like Griswold v. Connecticut (right of married persons to obtain contraceptives), Lawrence v. Texas ( right to engage in private, consensual sexual acts) and Obergefell v. Hodges (right to same-sex marriage)?

Justice Samuel Alito Jr., writing for the 6-3 majority, answered that abortion is unique and nothing in the opinion should cast doubt on precedents that don’t concern abortion. “Scout’s Honor,” replied the incredulous dissenter from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

During arguments in Dobbs v. Jackson Women’s Health Center in November, U.S. Solicitor General Elizabeth Prelogar warned that overruling Roe v. Wade would threaten the protection of other rights under the due process clause of the Fourteenth Amendment.
Countering that warning, Alito explained, “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”

Because of that difference, he added, “a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by ‘appeals to a broader right to autonomy.’ It is hard to see how we could be clearer.”

But the majority opinion contends there is no Fourteenth Amendment liberty interest in abortion because “and only because” the law offered no protection to the woman’s choice in the 19th century, the dissenters begin their rebuttal of Alito’s reassurance.

“But here is the rub,” the dissenters continued. “The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson. not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the states, too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even ‘undermine’—any number of other constitutional rights.”

And it also doesn’t help, they added, to take the majority at its word “Scout’s honor.” Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines.

The only justice willing to state clearly what he would do if faced with challenges to those “other rights” was Justice Clarence Thomas in his concurring opinion.

Thomas has long railed against the court’s recognition of a substantive due process component of the Fourteenth Amendment—the basis for Roe, Griswold, Lawrence and Obergefell.

Substantive due process, Thomas has written, is an “oxymoron” without any basis in the Constitution. The due process clause guarantees “at most” process. “It does not, as the court’s substantive due process cases suppose,” forbid government from infringing to certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

Resolving the Dobbs abortion case, Thomas said, was straightforward “because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”

However, Thomas added, abortion cases are “unique,” and no party in Dobbs had asked the court to reconsider its entire substantive due process jurisprudence.

“For that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “ Because any substantive due process decision is ‘demonstrably erroneous,” we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Like the court, some scholars disagree on what the abortion decision portends for those other rights.

The opinion provides the foundation for taking away other fundamental rights the court has long protected, said Elizabeth Wydra, president of the Constitutional Accountability Center. “Abortion rights might be the unenumerated rights that fall in this particular opinion, but other essential rights—including the right to marry or to access birth control—hang by a thread as well. As the joint dissent by Justices Breyer, Kagan and Sotomayor says, ‘no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone.’”
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But Alan White of the American Enterprise Institute called “false” the assertion that abandoning Roe would require abandoning other precedents. “Roe was an extraordinarily weak Supreme Court opinion, and it should never have been the benchmark for ‘stare decisis’ itself,” he said.