Are the leftists correct when they claim that the recent Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade could impact other constitutional issues such as legalization of contraception and gay marriage? In this post, I will show you that indeed these other issues are related to abortion when it comes to Supreme Court precedent.
The question itself is actually a good one. One of the complaints from the abortion loving leftist crowd is that this decision will somehow affect “LGBTQ” rights. When I summarized the Dobbs decision after it was leaked, I mentioned that one of the flaws from a Traditional Catholic perspective in Alito’s opinion was his insistence that abortion had nothing to do with other rights, such as homosexual “marriage” and contraception.
If you haven’t done so, be sure to read Justice Thomas’ concurrence. One of the differences between his opinion and Alito’s (even though they arrived at the same conclusion) was that Thomas was trying to open the door to reversing other bad decisions—bad from a legal standpoint, evil from a moral one. Alito tried to keep the impact of this decision limited to abortion only. Before you can understand Thomas’ point, you need some background and history.
The Fourteenth Amendment
Like abortion in Roe v. Wade, the Supreme Court has found in the Constitution the right to contraception use, sodomy, and homosexual marriage. In practice, this means that individual states cannot enforce state laws on the books that criminalize these practices. And just like abortion, nowhere in the actual text of the U.S. Constitution with all its amendments are any of these practices referred to, let alone, explicitly mentioned.
The primary basis for these decisions is rooted in the Fourteenth (14th) Amendment’s Due Process clause. This provision, in Section 1 of the Amendment states:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).”
You may be thinking: “okay, I don’t see anything about abortions, gay marriage or contraception in that clause. And I know states are allowed to pass laws all the time that criminalize bad behavior, so how did the Court arrive at finding a constitutional right to sodomize others and murder babies?” Good question. Justice Thomas keeps asking the same question.
I will now briefly summarize the purported reasoning the Supreme Court used to effectively force these evil practices on a mostly unwilling population, and in doing so, you will then see exactly how these other issues are directly related to the Dobbs decision that overturned Roe v. Wade.
The “Right to Privacy” in Contraception Cases
The Court’s effort to enshrine objective moral evil in the United States Constitution, at least in the twentieth century, essentially began with Griswold v. Connecticut in 1962 and Eisenstadt v. Baird in 1972. Perhaps not so shockingly, these cases both involve contraception.
Griswold v. Connecticut (1965)
Only seven years before Roe, the Supreme Court dealt with the issue of whether a Connecticut law that made it a crime to use any drug or article to prevent conception violated the federal constitution. Griswold was the Executive Director of Planned Parenthood in Connecticut. Planned Parenthood sued the state arguing that the law violated the Due Process clause under the 14th Amendment to the U.S. Constitution (see the text cited above).
Now, you may ask, where in the world does the Supreme Court come up with the idea that the state cannot prohibit contraception in the 14th Amendment? Don’t states pass laws all the time that criminalize immoral actions that deprive citizens of their liberty if they violate those laws—you know, like murder or dangerous drugs?
The answer, according to the Court, is because that Due Process clause contains a “right to privacy.” Now, you may ask again: “I don’t see anything about a “right to privacy” there?!”
The Court reasoned that for most of the rights explicitly mentioned in the text of Constitution including the Bill of Rights, there are “peripheral” rights or “penumbras” attached to them. For example, because freedom of speech in the First Amendment is all about transmitting knowledge to others, this means you should have the right to educate (i.e. transmit knowledge) to your own children in private schools. Thus, there is a federal constitutional right to educate your children in a private school even though there is nothing about education mentioned in the text of the Constitution.
And so, the Court announced its famous line (well, famous in law schools anyway):
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. [citation omitted]. Various guarantees create zones of privacy…These cases bear witness that the right of privacy which presses for recognition here is a legitimate one (emphasis added).”
And so, these “penumbras formed by emanations” from other explicitly stated rights basically can be used to find new rights in the Constitution that the drafters of constitutional provisions probably never even imagined. And so is the case with contraception.
The Court went on to find a right to privacy in the constitution because the Third Amendment prohibits forced quartering of soldiers in home, the Fourth Amendment prohibits warrantless searches and seizures and the Fifth Amendment enables citizens to create zones of privacy around themselves when it guarantees the freedom from self-incrimination ( I don’t get that one either.)
And then, of course, there is the catch-all clause from the Ninth Amendment that the enumeration of rights in the Constitution shall not be construed to deny or disparage others. Putting this together, there is a “right of privacy” that emanates from all these other provisions.
Connecticut’s anti-contraception law applied to married couples. And because marriage “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” and because Connecticut’s law “seeks to achieve its goals by means having a maximum destructive impact upon that relationship” then married couples must have a constitutional right to buy and use contraception and any law that prohibits its use is unconstitutional.
Eisenstadt v. Baird (1972)
It wasn’t too much longer before the Court was faced with a contraception law in Massachusetts that applied to non-married couples. Now, if the marital relationship fell within this right of privacy announced in Griswold, then surely states must be able to prohibit the sale and use of contraceptives for unmarried couples in effort to discourage fornication, right?
Well, that’s what Massachusetts argued (I know, it’s amazing because they would never do this now). The state argued that restricting contraception availability discouraged premarital sex and therefore health and moral reasons justified the law.
In 1972, the year before Roe was issued, predictably Massachusetts was sued over its anti-contraception law and the Court ultimately held that this “right to privacy” also extends to unmarried couples even though they previously concluded that the right to privacy applied to contraception precisely because of the intimate nature of marriage. According to liberal Justice Brennan who penned the majority opinion:
“If, under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that, in Griswold, the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (emphasis added.)”
The right to privacy exists in marriage, according to the Court, but apparently because the marriage is made up of “two individuals, each with a separate intellectual and emotional makeup,” the right of privacy also applies to everybody else, not just married couples. The Court discussed other issues as well such as Equal Protection (treating married and non-married couples the same) and why it thought the state law was unreasonable. The main point for our purposes is that the “right of privacy” was now enshrined in Constitutional law and it protects “the decision whether to bear or beget a child.”
Circling Back to Roe v Wade
It is not hard to see now how the Griswold and Eisenstadt contraception cases set the legal stage for the Court to likewise find a “right to privacy” when it comes to killing your own children in the womb.
Justice Blackmun, who authored the Court’s opinion in Roe, stated:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Justice Harlan, who authored a concurring opinion in Roe, more specifically refers back to the contraception cases:
“Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. [citations omitted]. As recently as last Term, in Eisenstadt v. Baird, we recognized ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”
From this brief summary outlined above, it is obvious that the Court’s decisions in the contraception cases set the stage for its ultimate holding in Roe. And this makes sense because the reality is that contraception and abortion do involve the same underlying issue. Not the fabricated “right to privacy,” but the institutionalization of sexual immorality by eliminating the natural consequences of the sexual act—babies. What’s the common denominator between abortion and contraception? Avoiding babies.
Application to Homosexuality
If there is any proof that confirms my thesis above that the “right to privacy” was concocted for the primary purpose of promoting sexual immorality and deviancy, it can be found in the Supreme Court’s decisions in Obergefell v. Hodges and Lawrence v. Texas.
Lawrence v. Texas (2002)
Let’s start with Lawrence, a decision decided in 2002. In this case, the Court reversed its prior precedent in Bowers v. Hardwick and held that the Texas statute making it a crime to engage in sodomy violates the Due Process clause of the 14th Amendment.
Justice Kennedy, writing the decision for the Court, specifically cited back to Griswold, Eisenstadt and Roe to reach the conclusion that the “right to privacy” also includes the freedom to engage in sodomy.
Because the Court previously found no constitutional right to sodomy, Justice Kennedy adopted the dissenting opinion in that case (Bowers) before overruling it:
“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.”
Now, the right to privacy not only extends beyond marriage, it extends beyond natural sexual relations, it extends beyond terminating the natural result of sexual relations, but now the “right to privacy” includes unnatural sexual relations that have no possibility of producing children. Do you see how slow and methodical evil works to infiltrate institutions and ultimately society?
Obergefell v. Hodges (2015)
Finally, we can take the last step in our journey from fabricating a right to use contraception for married couples to discovering a right to marry someone of the same sex in the Constitution; once again in the Due Process clause of the 14th Amendment.
In this case, four different states defined marriage as a union between one man and one woman. Homosexual couples in each of these states filed lawsuits and they all ended up before the Supreme Court in 2015.
Justice Kennedy, who wrote the opinion for the Lawrence court, also wrote the opinion in this case. The Court held that the 14th Amendment requires states to license marriages between two people of the same sex.
Once again, Kennedy relies on Griswold and Eisenstadt when he opined that:
“Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. [citation omitted.] In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” (emphasis added)
Now, as you can see, the same Due Process clause that has been stretched and stretched to include all types of evil and perverted actions, has been stretched once more to include just about anything that involves “personal choices central to individual dignity and autonomy.”
And if you think this is absolutely ludicrous, that there is no way in hell the drafters of the 14th Amendment in the 1860s would have ever intended that clause or any part of that Amendment to include gay marriage—I mean good gracious they were trying to heal a broken nation after the civil war and give black people rights—well, Justice Kennedy as a response for you:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
In other words, those ignorant people in the past trying to give black people rights, simply did not understand how bad the gays actually had it. But they were smart enough to trust future generations to simply overlook what they spent all their time and effort to draft in effort to interpret it in whatever way was needed. So, while the drafters of the 14th Amendment would probably never have approved of homosexual marriages, they were at least smart enough to know that maybe enlightened future generations like the one Justice Kennedy lives in would actually figure out why homosexuality and sodomy is just like being a black person living under reconstruction in the South. Okay?
Relating Dobbs Back to Contraception and Homosexuality
To conclude, I hope this survey of constitutional law made it clear that when it comes to the Constitution, at least in the way the Supreme Court looks at it, contraception, abortion and homosexuality are all intimately tied together under this overarching “right to privacy” that all began with “penumbras formed by emanations” in Griswold.
Alito attempted to dissociate abortion from these other issues, while Justice Thomas sought to open the door to undoing the precedent in these other lines of cases. It should be obvious why the left is now concerned about that and why those who believe in the rule of law and morality should push for more and even better victories when it comes to Court decisions. Another common theme I hope you noticed is that contraception, abortion and homosexuality all have one thing in common: the sterilization of the sexual act.
So, what does all this mean? From a Traditional Catholic perspective, the fact that the rationale for finding a constitutional right to contraception and gay marriage is based on the same flawed legal reasoning as Roe just means there is still hope that the Court will turn back the clock to the time when we had some semblance of rule of law in this country. But this is going to require other justices to climb on board with Justice Thomas, and that is going to be an uphill battle.
Viva Cristo Rey.