As astute commentators have noted, the draft opinion in Dobbs v. Jackson Women’s Health Organization not only seeks to overrule Roe v. Wade, but might also someday threaten other decisions like Obergefell v. Hodges, which secured the right to same-sex marriage. What might be less evident is that the draft opinion has already undermined Obergefell by changing that case’s approach to recognizing unwritten rights in the Constitution.
The right to abortion is what’s known as an “unenumerated” right, meaning that it has constitutional stature even though no text in the Constitution — short of the abstract “liberty” protected by the Fourteenth Amendment — protects it. The idea of such unwritten rights may seem puzzling, but it’s well-established in our constitutional system.
The Ninth Amendment explicitly acknowledges their existence, stating that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Supreme Court has held that the right to travel across state lines and the right to vote (among many, many others) are constitutional rights even though they’re not specified in the text. So the question is not whether unwritten rights will be recognized, but which. And that of course requires the court to tell us how it will distinguish what’s in from what’s out.
