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Does the Dobbs Decision Mean Birth Control or Same-Sex Marriage Are Now at Risk?

Guy Benson
Guy Benson  |  June 27, 2022 10:15 AM

The US Supreme Court released its highly-anticipated decision in Dobbs on Friday, overturning the previous abortion precedents established Roe (1973) and Casey (1992).  The ruling was more or less unchanged from a  draft opinion -- authored by Justice Samuel Alito -- that emerged in early May, thanks to an unprecedented and apparently still-unsolved leak.  The resulting hurricane of reactions on all sides generally mirrors what we saw in a leak-inspired national dress rehearsal nearly two months ago.  Rather than recapitulate all of my thoughts in a new essay, I'll simply direct you back to several pieces I wrote at the time:

(1) An overall review of the leaked opinion and its implications.

(2) A reminder that some prominent progressive and pro-legalized-abortion constitutional scholars have long questioned the underpinnings of the Court's shocking and controversial Roe decision -- the late Ruth Bader Ginsburg among them.

(3) A refutation of weak and lazy arguments that seek to dismiss the pro-life case, or to disqualify the validity of many pro-lifers' opinions.

(4) An explanation of why public opinion on abortion is complex and sometimes contradictory, hence strong majorities in favor of upholding Roe, and also abortion limits that were not permitted under Roe/Casey.

(5) A debunking of Democrats' false and poll-tested claim that they're trying to "codify Roe" with ghastly and extreme abortion-on-demand-for-nine-months legislation.

Within minutes of the Dobbs case dropping, I appeared on Fox News with some instant analysis, then added a few additional points later in the afternoon:


On my radio show, which was devoted almost entirely to this subject on Friday, Special Report anchor Bret Baier posed a question that I've received quite a lot over the last month-and-a-half.  It's a fair one, drawing on widespread fears being openly discussed about whether Dobbs merely opens the door for a cascading roll-back of rights -- from privacy and contraception to same-sex marriage (and even interracial marriage).  Lefty media outlets and social media users have been beating this drum for weeks, if not longer.  House Speaker Nancy Pelosi devoted a great deal of her post-ruling comments to suggesting that other forms of 'reproductive freedoms' will be targeted next.  This is the continuation of an interesting phenomenon that emerged after the draft opinion was leaked: Many righties seemed more interested in discussing the leak itself than the substance it revealed, and many lefties focused heavily on 'slippery slope'-style catastrophizing about what would be next.  I believe this happened because abortion is difficult to discuss, the public's views about it are complicated, and most Americans don't agree with either major party's platform on the issue.  Baier's question was rooted in a much-scrutinized element of Justice Thomas' concurring opinion in Dobbs:

Justice Clarence Thomas argued in a concurring opinion released on Friday that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage. The sweeping suggestion from the current court’s longest-serving justice came in the concurring opinion he authored [in Dobbs].  In his concurring opinion, Thomas — an appointee of President George H.W. Bush — wrote that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — referring to three cases having to do with Americans’ fundamental privacy, due process and equal protection rights.

See? Birth control, sexual privacy, and same-sex marriage really are on the chopping block, came the chorus from many observers. I can understand why some people might read what Thomas wrote, see hyperbolic reactions from people they trust, and worry that Dobbs is 'only the beginning.' But for a number of reasons I laid out, prompted by Baier, I firmly believe this will not actually be the case: 


As I said in the exchange, this isn't just wish-casting or spin. I showed my work, and I'll do so again here.  First, let's start with the majority opinion itself.  Justice Alito went out of his way, at some length, to preemptively refute the rights-rollback argument:

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"The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life, Alito wrote, firing back at Justices Sotomayor, Breyer and Kagan. "This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights."  He went on: "We have stated unequivocally that '[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.' Supra, at 66. We have also explained why that is so: 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.'"  There's been speculation that Alito was so emphatic on these points because one or more of his fellow majority members were insistent upon it.  If that's the case, my money would be on Justice Kavanaugh as a key driver, as he also bent over backward to highlight both of these points, while also telegraphing in advance that certain potential anti-abortion actions by red states in the wake of Dobbs would be unconstitutional:


On top of this, we know that Chief Justice Roberts was fully on board to uphold Mississippi's abortion law, which was at issue in the Dobbs case.  He was not, however, comfortable overruling Roe and Casey outright, preferring an incremental approach (which might be understandable politically and in the realm of public perception, but also strikes me as unworkable and unsustainable from a legal perspective).  The idea that Roberts would be eager to take a crack at undoing the longstanding and overwhelmingly-supported rights established in Griswold or Lawrence (and increasingly Obergefell) is simply not plausible to me.  Especially not now.  And as I've noted previously, Justice Gorsuch authored a major opinion (with Roberts joining) in 2020 that substantially expanded LGBT rights.

Another crucial point: In order to "grant cert" -- i.e., accept a case for consideration -- four SCOTUS justices must agree to it.  I don't doubt that Justice Thomas would be on board for some of that (his defenders would say that his willingness to proceed down such a path arises not from animus, but from the belief that more questions should have always been left to states and legislators.  They might add that resulting 'parades of horribles' wouldn't materialize in our modern society, where interracial marriage and contraception attract near-universal support, and same-sex marriage is also getting there).  But it's likely a moot point anyway.  He's just one justice.  I believe the three liberal justices, plus the Chief, plus Kavanaugh would be the core coalition to deny cert, or to uphold these protections, even if the other four justices wanted to hear a case.  I'd further bet that at least one or two of those four would want nothing to do with any of it.  In other words, I'm reasonably confident that there are 6-3 or 7-2 (or even 8-1 or 9-0) majorities against overturning the cases and precedents under discussion.  I do not believe this Court would even take cases that directly challenge any of them, if such cases were somehow attempted and advanced.

In short, I appreciate why some people are worried.  I think some of the people telling them to be worried are either unaware of some of these dynamics, or are manipulating them through fear.  Perhaps time and subsequent events will prove me wrong.  But I doubt it -- and if I felt or feared otherwise, I'd say so.  And for what it's worth (perhaps not much, perhaps some), I've heard from a number of elite (pro-Dobbs, anti-Roe) legal minds on the center-Right who've reached out to register agreement with my analysis on these points.  Finally, two observations: Some critics of the Court allege hypocrisy on states' rights, given the majority's back-to-back decisions on guns and abortion.  The flaw in that argument is that the Second Amendment is literally written into the Constitution, in black and white, whereas the 'right' to abortion never was.  Whatever you believe on either issue, that point is indisputable.  Allahpundit put it succinctly:  "There’s a written right to keep and bear arms reflecting a practice that was widely regarded as legal at the Founding, but no written right to have an abortion, which wasn’t widely regarded as legal at the Founding."  Correct.  Second, there has been a torrent of misinformation on Roe v. Wade shoveled at the American people for decades, by design.  It's a big reason why upholding Roe has been so popular, even in the face of the crosswinds mentioned above.  Case in point:


The Youngkin proposal I mentioned is here, and Fox News and YouGov polling demonstrating its popularity are available at the links.  I'll leave you with this: