How Dobbs Threatens to Torpedo Privacy Rights in the US

This understanding provided the foundation for the court’s development of constitutional privacy to include a range of personal matters, including family living arrangements, parental rights, marriage, and abortion. But it remained controversial, not only because of the intense division of views over abortion, but also because it allowed for broader judicial authority in interpreting the Constitution.

The ‘Treacherous Field’ of Constitutional Privacy

First, a quick explanation of Dobbs and its rejection of a constitutional privacy right to abortion. It’s a story that began in the 1890s and continued to 1937, a period during which the Supreme Court entered what Dobbs and prior court opinions described as the “treacherous field” of substantive due process.

For roughly four decades at the outset of the 20th century—the so-called Lochner Era, named for a representative case of the period—the Supreme Court applied the due process clause of the Fourteenth Amendment expansively to review and strike down a range of social and economic regulations on grounds that they were unreasonable. Applying a “substantive” understanding of due process, the justices often freely superimposed their own ideas of the appropriate limits on government regulation of individuals.

This review was not confined to exceptional areas of individual interest but applied broadly to government regulation of wages, working conditions, the economy, and commercial transactions, as well as to more personal interests, such as parents’ choices regarding education and childrearing.

Frustration with the justices’ willingness to strike down popular legislation on the basis of their own views on reasonableness intensified during the Great Depression, as the court’s understanding of “substantive due process” became an obstacle to many New Deal efforts to revive the economy and protect the interests of the vulnerable.

Under mounting public pressure, the Supreme Court reversed course in 1937 and renounced Lochner’s understanding of substantive due process and the court’s power to second-guess ordinary regulation. After 1937, the court understood substantive due process to mean only that whenever government interfered with individual liberty, it must act rationally in pursuit of a legitimate state interest. Under this “rational basis test,” virtually all government regulation was held to be constitutional.

In 1965, in Griswold v. Connecticut, the Supreme Court revived a broader understanding of the Constitution’s protection for individual liberty after striking down a Connecticut law that regulated contraception. But it hesitated to describe this protection as substantive due process, given the near-universal rejection of the Supreme Court’s abuse of its role during the Lochner Era. Instead it attributed the protection to a more amorphous “right of privacy” implicit in constitutional guarantees without committing to any one textual source. The Griswold court also emphasized that this right of privacy did not open the door for more aggressive court review of ordinary social and economic regulation.

In Roe v. Wade in 1973, the court found that a woman’s right to elect an abortion fell within the heightened protection for individual privacy, while also suggesting that it would be better to acknowledge that this heightened protection came from substantive due process under the Fourteenth Amendment.

In future cases, the Supreme Court continued to acknowledge that its heightened protection for privacy rights was a product of substantive due process review while insisting that this was consistent with the rejection of Lochner because it applied only to “fundamental” liberty interests. As a result, the court’s doctrine required differentiating “fundamental” liberty interests, for which government interference was presumptively unconstitutional, from ordinary liberty interests, which the government was presumptively free to limit as long as it acted rationally.

The justices continued to struggle over which liberties ranked as fundamental. A narrower test favored by more conservative justices limited fundamental rights to only those that were clearly set out in the Constitution’s text or would have been regarded as essential at the time the Fourteenth Amendment was enacted in 1868. A more expansive approach, employed in Roe and other cases, looked more to a contemporary assessment of the profound stakes for the individual. Yet another approach, suggested in cases like Lawrence v. Texas, looked to evolving understandings of essential personal liberty as evidenced by popular consensus.