Dignitary Harms and Abortion Law.

Abstract

In Planned Parenthood v. Casey the Court argued that the Fourteenth Amendment protected “choices central to personal dignity and autonomy” (Planned Parenthood of Southeastern Pa. v. Casey 1992). In the decades that followed, this language proved to be increasingly significant—grounding not only the procreative liberties of pregnant persons, but serving as the basis for the greatest expansion of LGBTQþ rights in American history. This commentary argues Dobbs v. Jackson (Official Reporters, Dobbs v. Jackson Women’s Health 2021) not only puts these advances at risk, but that the ‘dignitary harms’ found to be at issue in subsequent decisions (including, Lawrence v. Texas 2003; United States v. Windsor 2013; Obergefell v. Hodges 2015) give us reason to believe the Court should recognize greater protections for the procreative liberties of pregnant persons. In oral arguments Chief Justice Roberts noted that although the Court only granted cert on the question of whether all pre-viability restrictions were unconstitutional, the petitioners in Dobbs quickly shifted gears to argue that the core holdings of Roe (Roe v. Wade 1973) and Casey should be thrown out in their entirety (Official Reporters, Dobbs v. Jackson Women’s Health 2021). That said, it would understate the case to say these are the only precedents at risk in this case: as overturning Roe or Casey could undermine the basis for many LGBTQþ rights. For instance, in Lawrence the Court found the language in Casey to be particularly instructive for thinking about the kinds of choices the Fourteenth Amendment protects. In many ways, Lawrence can be understood to analogize the kind of ‘choice’ at issue in one’s consensual sexual associations to be similar to the choice at issue in Casey. Indeed, quoting Casey at length, in Lawrence the Court writes “[t]hese matters, involving the most intimate and personal choices a person may make in a life time, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” (Lawrence v. Texas 2003). Thus, while one might be able to make another argument for the core-holding of Lawrence, insofar as Lawrence relied so heavily on Casey in its rationale, overturning Roe or Casey would undoubtedly call into question Lawrence’s constitutional basis as well. Nor do the lines of precedent that would be at risk end with Lawrence. Indeed, although Windsor does not draw on the language of Casey as explicitly, the term ‘dignity’ appears no less than 22 times in the Court’s decision, which found the Defense of Marriage Act to be constitutionally invalid (United States v. Windsor 2013). Similarly, in Obergefell the Court again used language almost identical to that found Casey, and seemingly wove all three of these decisions together: noting both the dignitary harms done to same-sex couples in denying them access to marriage (more on this below), as well as the special protections afforded under the Fourteenth Amendment to a certain set of individual choices. As a result, Dobbs doesn’t merely threaten to overturn the Court’s precedents on abortion law, but the many gains that have been made for LGBTQþ rights in the 30 years since Casey.