Hodge et al on Reversals of Non-Textual Constitutional Rights

James G. Hodge (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Jennifer L. Piatt (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Erica N. White (Arizona State University (ASU), Sandra Day O'Connor College of Law; Center for Public Health Law and Policy), Madisyn Puchebner (Arizona State University (ASU), Sandra Day O'Connor College of Law), & Summer Ghaith (Arizona State University (ASU), Sandra Day O'Connor College of Law) have posted Curbing Reversals of Non-Textual Constitutional Rights (Maryland Law Journal of Race, Religion, Gender & Class. 2022; 22(2): __- __ (forthcoming)) on SSRN.  Here is the abstract:

With the June 2022 issuance of Dobbs v. Jackson Women’s Health Organization, one of the most impactful cases in U.S. history, the Supreme Court renounced nearly a half-century of constitutional guarantees to abortion access. The Court’s stunning “rights reversal,” justified by the majority’s originalist assessment that prior jurisprudence was imprudently decided, places at immediate risk multiple other non-textual rights (e.g., to contraceptives, sexual intimacy, marriage equality). These privacy interests are already under political and legal attacks in several jurisdictions. As illustrated in response to Dobbs, neither the President, Congress, nor progressive states are willing, well-positioned, or poised to ameliorate existing or future judicial reversals of rights. Who can allay the threat of diminishing privacy interests or other non-textual rights? Why, the Supreme Court itself. Under principles of “constitutional cohesion,” which recognize the close interplay of rights and structural components (e.g., separation of powers, federalism, and preemption) within the U.S. Constitution, the Dobbs Court’s “rights-centric” approach to withdrawing non-textual rights faces significant challenges. Ultimately, structural challenges set definitive limits on additional judicial interpretations of non-textual rights and present opportunities for their partial reinstatement through the very Court that seeks to strip them away from Americans.