The Shifting Landscape of Substantive Due Process: Could Dobbs Pose a Threat to Contraceptive Rights?

Authors

Madeline C. Tatro

Document Type

Student Note

Abstract

Nearly two years ago, the Supreme Court issued its infamous decision in Dobbs v. Jackson Women’s Health Organization, a challenge to one of the then-most restrictive abortion bans in the country. In a stunning—yet not entirely surprising—6-3 decision, the Court held that the Fourteenth Amendment’s Due Process Clause does not protect abortion as a fundamental right and returned the power to regulate abortion to the states. Of course, legal questions abound as to the future of reproductive care in the United States following this infamous decision, and Justice Thomas’ concurring opinion raises one of the largest-looming concerns. In that concurrence, Thomas calls on the Court to revisit seminal substantive due process precedents, including Griswold v. Connecticut, the case that established that access to contraceptives is a federally protected right.

This Note seeks to determine whether Dobbs could be extended to overturn one of Griswold’s central holdings, a decision that would open the door for states to limit access to contraception in countless ways. The Note begins by discussing the three prominent theories the Court has employed in construing rights under substantive due process, highlighting the inconsistency with which the Court has approached substantive due process issues over time. With this context, the Note then looks to the Court’s approach to substantive due process in Dobbs, an opinion that cements the Court’s commitment to viewing rights through the lens of “history and tradition.” The narrow lens through which the Court views our country’s legal history suggests that access to contraception could be in jeopardy. The Note concludes by assessing how states could frame future restrictions on contraception and offers some avenues for action. While the future of contraceptive access as a legal right is difficult to predict, one thing is certain: should the Court ultimately revisit Griswold, its decision on its central holding will shape the lives of women for decades.

Recommended Citation

Madeline C. Tatro, The Shifting Landscape of Substantive Due Process: Could Dobbs Pose a Threat to Contraceptive Rights?, 17 St. Louis U. J. Health L. & Pol'y (2024).
Available at: https://scholarship.law.slu.edu/jhlp/vol17/iss2/6