Abortion and Liberty Rights: Spotlight on Dobbs v. Jackson Women’s Health

The Supreme Court has repeatedly recognized that any concept of liberty must include the right to make intimate decisions about family, relationships, bodily integrity, and autonomy. The right to abortion sits within that essential spectrum—and weakening it would also weaken the Constitution’s protections for liberty more broadly. 

In the Center for Reproductive Rights’ upcoming U.S. Supreme Court case, Mississippi has asked the Court to overturn Roe v. Wade—upending nearly 50 years of precedent—and find that there is no right to abortion in the Constitution. In taking up the case, for the first time since the Roe ruling in 1973, the Court has agreed to consider the constitutionality of a pre-viability abortion ban. 

The case, Dobbs v. Jackson Women’s Health Organization—which will be argued at the Court December 1—is the most consequential abortion rights case in generations. And it carries far-reaching implications for U.S. liberty rights well beyond the right to abortion.

In amicus briefs (also known as “friend-of-the-court” briefs) filed in support of the  challenge to the law, constitutional law scholars and the American Civil Liberties Union (ACLU) invoke the risk to the broad spectrum of liberty rights in urging the Court to strike down Mississippi’s law banning abortion at 15 weeks of pregnancy. 

Roe was a landmark decision recognizing that the decision to terminate a pre-viability pregnancy belongs to the individual, not the state. Roe not only made abortion legal in all 50 states, but it also strengthened the Supreme Court’s development of a constitutional framework that recognizes related liberty rights—including the right to same-sex marriage, to engage in private sexual conduct, and to use contraception.

The amicus briefs by constitutional law scholars and the ACLU assert that:

• The right to abortion is clearly grounded in the Constitution and protected under the liberty guarantee in the Due Process Clause of the Fourteenth Amendment.

• Interwoven Court opinions have repeatedly and consistently reaffirmed the individual’s right to make decisions about family, child-rearing, contraception, and bodily integrity—including the decision of whether to have an abortion.
• If the Supreme Court were to overturn Roe and Casey, it would also call into question dozens of other liberty decisions beyond abortion.

Highlights of the briefs and their arguments:

Constitutional Law Scholars

This brief by scholars who teach and write about constitutional law highlights the ways in which upholding Mississippi’s 15 week ban would destabilize the Constitution’s broader protections for liberty. 

The scholars argue that overturning Roe or Casey “would mark a stunning reversal of the Due Process jurisprudence this Court has built over the past several decades, calling into question a host of other fundamental Due Process rights.” Bodily integrity rights, including protections against forced surgery or medical treatments, could be undermined. So could the right to direct the upbringing and education of one’s children; the right to engage in private sexual conduct; the right to use contraception; and the right to marry a person of the same sex.  

While the state of Mississippi argues for a cramped approach to defining liberty rights that would only look to the past, the scholars point out that “the Court has rejected Mississippi’s position that the specific rights the Due Process Clause protects are finite and definitively determined as of the time of the Fourteenth Amendment’s ratification.” Read the brief by constitutional law scholars.

American Civil Liberties Union (ACLU)

By stressing the interconnected and continuous nature of the Court’s liberty precedents, the ACLU’s brief rebuts Mississippi’s argument that abortion is “untethered to the Constitution and this Court’s privacy and liberty jurisprudence.”

“Abortion is not categorically different from liberty, privacy, and bodily integrity rights the Court has recognized as protected by the Fourteenth Amendment,” writes the ACLU in its brief to the Court. The organization—which is dedicated to the principles of liberty and equality embodied in the Constitution and the nation’s civil rights laws—discusses how the right to abortion is woven into the Constitution and the Court’s liberty jurisprudence, which protects a range of personal rights against state interference, and that there is no principled reason for eliminating that right.

The brief explains that “[T]he the jurisprudence that preceded Roe for fifty years, like the jurisprudence that has followed it in the fifty years since, sets out a consistent principle: that the Constitution protects the rights of all of us to make foundational decisions about personal and family life.”  

The ACLU cites nearly 100 years of the Court’s precedents that protect rights as diverse as refusing sterilization, marrying a person of a different race, and living with a chosen family group. The brief ties this line of cases to the Court’s long-standing protections for abortion,  which it explained in Casey flow from  “a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

The consistency of the Court’s liberty precedents, the brief argues, lends them extra weight. “These decisions are an essential part of the fabric of rights protecting individuals from government interference in their most intimate decisions. And their place in and deep connection to this established jurisprudence counsels heavily against overruling them.” Read the brief by the American Civil Liberties Union.

More than 50 amicus briefs were filed in support of the Center’s case, Dobbs v. Jackson Women’s Health Organization. Click here to see the list.

Read more:

• Report: Roe and Intersectional Liberty Doctrine

About the case:

• Dobbs v. Jackson Women’s Health Organization
• Oral arguments: Listen to the livestream on December 1 @ 10a.m. ET.