The day after Justice Alito’s draft decision in Dobbs was leaked, protesters gathered in front of the Supreme Court. (LWVUS)

Fair warning: This article does not attempt to make a reasoned or legal argument based on exhaustive research and clear-eyed thinking. It is purely an emotional although logical response to the recent Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization. That decision effectively cancels a woman’s right to abortion (and to bodily autonomy), as established nearly fifty years ago by the Roe v. Wade decision.

Forced Labor

I think we need to add a new definition to the term forced labor, i.e., “forced to carry an unwanted pregnancy to term by the state.” U.S. Code 18 § 1589 narrowly and specifically defines forced labor in a manner that does not allow for the definition to apply to coercing women to give birth. I argue that during the period of gestation, women’s bodies are now, as a result of Dobbs, being treated as a property of the state.

Under Scottish law, the Human Rights Act, Article 4 defines forced labor as “forced . . . work that you have not agreed to, under the threat of punishment.” This, I argue, is a good reflection of pregnant Americans’ new reality.

Unequal Status Means Unequal Protection

It frequently feels like some people are viewed as more equal than others, gifted with inalienable rights that others must continuously struggle to get and to keep. That sense of inequality bombards my eyes, my ears, my heart. I feel it personally for myself and for others.

What does inequality have to do with the Supreme Court’s decision? Everything!

In several case rulings, the Supreme Court has gradually extended civil rights to those who lived under the previously legal burden of being born Black, female, queer, poor, and/or otherwise marginalized. Those rulings were rendered based on the Fourteenth Amendment’s “liberty,” “equal protection,” and “due process” clauses as well as the Bill of Rights’ guarantees of the right to privacy as interpreted. In the past, these rights have generally been upheld by the Supreme Court in various landmark decisions.

Fourteenth Amendment Decisions

Cases decided under the guaranteed rights of the Fourteenth Amendment include:

• The Slaughter-House Cases (14 April 1873)—confirmed the right to freely travel throughout the states.
• Lochner v. New York (17 April 1905)—created the “right to contract,” which the Court extracted from the due process clause.
• Gitlow v. New York (8 June 1925)—established the concept of “incorporation,” the process whereby provisions in the Bill of Rights apply to the states through the due process clause of the Fourteenth Amendment.
• Brown v. Board of Education (17 May 1954)—ruled that separate is inherently unequal, in violation of the Fourteenth Amendment’s equal protection clause.
• Mapp v. Ohio (19 June 1961)—incorporated the Fourth Amendment’s protection of privacy using the due process clause of the Fourteenth Amendment.
• Gideon v. Wainwright (18 March 1963)— required state courts to provide counsel in criminal cases to represent defendants who are unable to afford to pay their attorneys, guaranteeing the Sixth Amendment’s similar federal right.
• Griswold v. Connecticut (7 June 1965)—protected the right of married couples to privately engage in counseling regarding contraceptive use and procurement. The Court ruled that although not explicit, the “penumbras” of the Bill of Rights contained a fundamental “right to privacy” that was protected by the Fourteenth Amendment’s due process clause. Griswold’s “right to privacy” has been applied to many other controversial decisions, such as Roe v. Wade. It remains at the core of substantive due process debate today.
• Loving v. Virginia (12 June 1967)—held that the equal protection clause required “strict scrutiny” of laws applying to all race-based classifications, including interracial marriage, and concluded that a law rooted in hateful racial discrimination had no compelling government interest. The Loving decision still stands as a milestone in the civil rights movement.
• Regents of the University of California v. Bakke (26 June 1978)—held that the use of strict racial quotas was unconstitutional because it violated the equal protection clause, but that race could be used as one of several factors in the admissions process.
• Lawrence v. Texas (26 May 2003)—found that Texas violated the liberty clause and the Constitution’s privacy protections when the state prohibited actions in “matters[] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy . . . central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. . . . The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny. . . . Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’”

Our Constitution contains no express right to privacy. However, woven into the Bill of Rights are several constitutional protections that allude to privacy protections, such as “taking the Fifth” (asserting one’s rights under the Fifth Amendment) to protect your personal knowledge, the Fourth Amendment’s protections against unreasonable searches, the Third Amendment’s protection of your privacy in your home, and the First Amendment’s protection of your personal and private beliefs.

Until recently, the Supreme Court has also relied on the “liberty” guarantee of the Fourteenth Amendment to rule in favor of privacy to decide cases related to termination of medical treatment, reproduction, and parenting.

On June 30, 2022, nearly a week after the Supreme Court overturned Roe v. Wade, Representative Judy Chu (CA-27), center, a member of the League of Women Voters Pasadena Area, attended a peaceful civil disobedience rally near the Supreme Court, where she was arrested alongside other activists. (Courtesy of Office of U.S. Rep. Judy Chu)

A Looming Threat

With the overturning of Roe v. Wade, our ability to rely on the protections under the Bill of Rights are cast into doubt and uncertainty—a concern well justified by Justice Clarence Thomas’s concurring opinion (see below). Also at stake, for example, is the concept of one person, one vote as decided in Baker v. Carr (1962), the U.S. Supreme Court case that held that federal courts could hear cases alleging that a state’s drawing of electoral boundaries, i.e. redistricting, violates the equal protection clause of the Fourteenth Amendment of the Constitution. In so ruling, the Court also reformulated the political question doctrine, which holds that federal courts should not hear cases that deal directly with issues that the Constitution makes the sole responsibility of the Executive Branch and/or the Legislative Branch.

At the LWV Convention in Denver, delegates once again expressed their belief that we make passage of the Equal Rights Amendment (ERA) a priority—perhaps forgetting that in 2018 a motion was made and passed for the League to see the ERA “through whatever judicial or other challenges may occur until we see the Amendment added to the US Constitution.” Can you recall any action you have taken to make it so? I admit, I can’t. Maybe if the ERA were firmly in place in our Constitution, Roe v. Wade would still be standing, or the ERA would at least provide a strong legal position to challenge the many state “trigger laws” that now severely restrict or prohibit a woman’s right to choose.

—Martha Zavala

Justice Clarence Thomas’s Concurring Opinion from the Dobbs Decision

As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”).“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

 The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, Cite as: 597 U. S. ____ (2022) THOMAS, J., concurring 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

 For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell [emphasis added]. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt. —————— *Griswold v. Connecticut purported not to rely on the Due Process Clause, but rather reasoned “that specific guarantees in the Bill of Rights”—including rights enumerated in the First, Third, Fourth, Fifth, and Ninth Amendments—“have penumbras, formed by emanations,” that create “zones of privacy.” 381 U. S., at 484. Since Griswold, the Court, perhaps recognizing the facial absurdity of Griswold’s penumbral argument, has characterized the decision as one rooted in substantive due process. See, e.g., Obergefell v. Hodges, 576 U. S. 644, 663 (2015); Washington v. Glucksberg, 521 U. S. 702, 720 (1997).