After Dobbs is any unenumerated right safe?

 

In 1960 oral contraceptives "the pill" became available to women.  Estelle Griswold in 1965 successfully challenged the Connecticut law that banned contraceptives. Married couples have a privacy right to control their choices in parenthood - or not. In  Griswold v.Connecticut Justice William O. Douglas wrote for a 7-2 majority, that held that the 1st, 3rd, 91th and 14th Amendments created a "penumbra" that established a married couple's privacy rights to use birth control.  Many other such moments followed.

It is bizarre that a conservative movement largely characterized by extreme individualism, and a "racialised anti-statism" [in Jefferson Cowrie's phrase] should yield decisions like Dobbs v. Jackson Women's Health.  Not only does the Opinion of the Court renounce the idea that a woman has the personal, private right to terminate a pregnancy but it casts doubt on a slew of other "unenumerated rights:

Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U. S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U. S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965), Eisenstadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services Int’l, 431 U. S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U. S. 494 (1977); the right to make decisions about the education of one’s children, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska, 262 U. S. 390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U.S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex). See Brief for Respondents 18; Brief for United States 23–24.

These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. (emphasis added - GWC)