Introduction

Dobbs adopted a retrograde constitutional test for determining the scope of liberty rights protected under the federal constitution and went even farther to address sex equality issues that were not even part of the case. A key question after Dobbs was how this extremist version of constitutional analysis would impact other civil liberties, including contraception, marriage, student privacy, and gender-affirming care. Four years later, Dobbs’ analysis is distorting other areas of law, and some federal and state courts are relying on Dobbs to reject sex-discrimination claims in cases that involve health care beyond abortion.

Trans rights

Trans rights

Dobbs has metastasized

Dobbs has made its way into litigation around transgender rights, threatening to further retract constitutional protections for personal liberty and equality.

This metastasis is even more remarkable because it relies on a legal issue far outside Dobbs. Although Dobbs only raised the question of whether the long-standing liberty right to abortion would be overturned, the majority went further to state that its precedent “squarely foreclosed” an equal-protection theory for abortion because typically “[t]he regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.”¹ The Court cited Geduldig v. Aiello, a long-atrophied case from 1974 upholding state insurance exclusions for pregnancy benefits on the grounds that pregnancy discrimination is not always sex discrimination.²

Dobbs’ musings about issues beyond the case should lack any precedential force, and lumping in all “medical procedures” with Geduldig’s narrow ruling on pregnancy is a sweeping expansion for which the Court offered no legal support. But three years later in United States v. Skrmetti the Court upheld a Tennessee law that banned gender affirming care for trans—but not cis—young people.³ Skrmetti cited Dobbs’ rewriting of Geduldig to hold that restricting medical care or procedures that only one sex can receive is not constitutionally problematic in the absence of intentional discrimination, and affirmed the ban as a reasonable regulation of medical care.⁴

Dobbs and Skrmetti’s holdings will likely impact a range of trans-rights cases focusing on equal rights to use public services, play sports, receive healthcare, and more. Lower federal courts are citing both cases to reject challenges to bans and restrictions on gender-affirming health care and coverage.⁵ This summer, the Court could further constrict equal-protection precedent through a pair of cases in which the states of Idaho and West Virginia argue that bans on trans women and girls participating on sports teams draw constitutionally permissible distinctions based on biological differences, and therefore are not unconstitutional sex discrimination.⁶

Even though state courts can reject interpreting their constitutions in lockstep with the federal constitution, similar reasoning has made its way into state decisions. State courts in Texas, Missouri, and North Dakota have upheld bans on gender-affirming care for trans youth, and the Missouri Supreme Court upheld a law prohibiting state Medicaid payments for such care for adults.⁷

Contrary to the Supreme Court’s take, trans rights and abortion rights support and strengthen each other, as some state courts have recognized. The Montana Supreme Court recently relied on the state’s long-established privacy protections for abortion to reject a law banning gender-affirming care for young people, explaining that government regulation of private medical decisions is subject to the most stringent judicial review⁸.

“History and tradition” analysis

“History and tradition” analysis

How Dobbs is unravelling other rights

Dobbs is beginning to take the law backwards in another way. In Dobbs, the Court held that the rights included in the Fourteenth Amendment’s liberty protections must be “deeply rooted in this Nation’s history and tradition.⁹ But the Court froze the meaning of liberty in 1868 when the Fourteenth Amendment was ratified, holding that rights or liberties that were unprotected at that time are not fundamental today.¹⁰ The Court disregarded its recent and more expansive approach to assessing liberty rights in cases like Obergefell. Instead, it reverted to a test that ignores the debilitating inequity that is built into the nation’s past, when entrenched racial, sexual, and gender exclusion meant that many people had fewer freedoms and could not participate in the creation of law or public life.¹¹

State and federal court decisions addressing trans rights, student privacy, and contraception are now demonstrating the threats that Dobbs’ constitutional test poses to liberty. For example, a federal court of appeals upheld a ban on gender-affirming care for trans youth, rejecting parents’ claim they enjoyed a deeply rooted right to make decisions about their children’s care, and instead reframing and dismissing a “right to treat [one’s] children with transitioning medications subject to medically accepted standards” as a twentieth-century invention.¹²

On the flip side of parental rights, a federal district court held that a policy prohibiting federally-funded Title X providers from requiring parental consent or notification when young people sought birth control violated parents’ liberty right to control their children’s upbringing.¹³ The court stated sweepingly that “the common law held minors were incapable of giving consent to make important life decisions” and found that there was a “deeply rooted right of parents to make important life decisions for their children.”¹⁴ These cases show that four years after Dobbs, courts are using its constitutional test to reach outcome-driven results that limit reproductive and personal autonomy. Future cases may continue to test the limits of a backwards-looking and selective version of liberty.

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