In future cases, the Supreme Court continued to recognize that its increased protection of privacy was a product of substantive treatment, while insisting that this was in line with the rejection of Lochner because it concerned only “fundamental” liberties. As a result, the doctrine of the court required to distinguish between “fundamental” liberties, for which government interference was presumably unconstitutional, from ordinary liberties, which the government could presumably freely restrict as long as it acted rationally.
The judges continued to fight over what freedoms were fundamental. A narrower test favored by more conservative judges limited fundamental rights to only those that were clearly stated in the text of the Constitution or would have been considered significant at the time the Fourteenth Amendment was adopted in 1868. A more expansive approach, used in Roe and other cases, then more to a contemporary assessment of the deep efforts of the individual. Another approach, suggested in cases like Lawrence v. Texaslooked at evolving understandings of essential personal freedom as evidenced by popular consensus.
Though Roe remained controversial in legal circles, in part for its more expansive understanding of fundamental rights and for the surprising specificity of its quarterly framework for the revision of abortion legislation, it was reaffirmed in Planned Parenthood v. Casey in 1992 in a joint statement that seemed to confirm an understanding of substantial fair process that evolved with popular values. A number of landmark cases over the next quarter of a century seemed to anchor this understanding. In particular, the court extended the same principle of privacy to protect the right of homosexuals to form intimate relationships and to marry based on the recognition of a “new awareness” of their equal claim to dignity in deeply important matters, despite the lack of historical protection of these rights.
It was on this landscape Dobbs signaled, of course, an abrupt turn. While the Court did not directly reject the concept of substantive fair trial, it rejected any basis for recognizing “fundamental rights” other than in the text of the Constitution or in deeply rooted historical traditions. Because the right to abortion was not in the text, and because the authors of the Fourteenth Amendment of 1868 did not regard abortion as a fundamental freedom, the court held that there was no basis for special constitutional respect for a woman’s right to choose. Instead, the majority found that the right to make decisions regarding pregnancy was a universal freedom of the same rank as worldly choices of lifestyle, trade, or recreation, subject to free-wheel regulation as long as the government acted rationally.
Going forward therefore Dobbs‘approach would contain fundamental rights entitled to a strong constitutional protection for a narrow bond of freedoms that is so universally respected over time that in any case there would be little likelihood of political interference.
The “privacy” right where Dobbs train aim is really a right to personal autonomy: a right that Dobbs expressed it, “to make and implement important personal decisions without government intervention.” And in Dobbs, it rather shrunk considerably. This is why many suggest that the next rights in the crosshairs could be those for same-sex contraception or marriage, as Judge Thomas openly called in his concluding opinion: If these rights are not found in the text of the Constitution, and if the authors of the Fourteen Change could not have imagined them in 1868, it is not obvious why they would stand on firmer ground under the logic of Dobbs.
A “very different” kind of privacy: “the right to protect information from publication”
The impact of the court’s opinion in Dobbs and its implications for autonomy rights in the name of privacy are seismic, however Dobbs does not mean the end of legal protection of other forms of privacy, both under the Constitution and other laws. For example, the text of the fourth amendment states that the government cannot freely search homes without an order. That Dobbs meaning does not change it.
Dobbs nor does it say anything about what Justice Alito called a “very different” form of privacy in his majority opinion, “the right to protect information from disclosure.” This may seem like a thin line, given that both autonomy and disclosure interests stem from a common root in privacy in its “right to be left alone” sense, but constitutional autonomy rights and the right to information protection have different purposes and often different legal basis. .