The Supreme Court’s decision in Dobbs overruled Roe and Casey, and it is being rightly praised for doing so. But Dobbs did more than that.
Hill Bites the Dust
The Dobbs decision, in demonstrating the harm caused by Roe and its progeny, pointed out that abortion cases had distorted the law in multiple other areas. One of the ways the Court highlighted was that they “have distorted First Amendment doctrines.” (Slip op. at 63.) Cited in support of this proposition was a single case, Hill v. Colorado, 530 U. S. 703 (2000). In Hill, a majority of the Court had upheld a substantial buffer zone around an abortion clinic preventing pro-life individuals from picketing or talking with others within the zone, despite the zone including public property. While the Court cut back somewhat on Hill in McCullen v. Coakley, 573 U.S. 464 (2014), and in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), citing as authority in both cases dissenting opinions in Hill, Hill was still on the books and engendering similar buffer-zone ordinances. See, e.g., Bruni v. Pittsburgh, 941 F.3d 73 (3d Cir. 2019).
Now it is safe to say that Hill is no longer good law. Ordinances restricting picketing and other communications on public property around abortion clinics should not be given any extra deference as they did in Hill. The only permissible restrictions should be those commonly applicable to all other situations, such as blocking ingress or egress to private property.
Self-Definition of Liberty Is Reined In
Perhaps the most notorious of the holdings in Roe and its progeny was the passage of Casey that extolled the autonomous self as being able to define what liberty meant to that individual, which Justice Scalia sardonically dubbed the “mystery passage”: the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 505 U.S. at 851. The Dobbs majority labeled this standard as “ethereal” (slip op. at 5) and noted that to make such a broadly framed right absolute would not be plausible: “While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered liberty.’” (Slip op. at 30-31.)
This problem with the free-floating, subjective concept of “liberty” envisioned in Casey was that it was unhinged from the original understandings of the Constitution. Indeed, the mystery passage formed a principal basis for the majority decision in Lawrence v. Texas, 539 U.S. 558 (2003), which found that the Constitution protected consensual, private homosexual acts. Casey’s expansive view of personal autonomy helped the majority in Lawrence clear the hurdle of the fact that homosexual conduct was a criminal offense in every jurisdiction when the Constitution was ratified. While the Dobbs decision takes great pains to distinguish cases such as Lawrence and Obergefell (the same-sex marriage decision) on the grounds that they did not involve killing an unborn person (slip op. at 32, 37-38, 66, 71), it also rejected the idea of liberty as expressed in Casey as being constitutionally significant and looked instead to historical understandings at the time the relevant constitutional provisions were ratified. Thus, the Dobbs dissenters are right to warn that the Dobbs rationale significantly erodes the validity of cases like Lawrence and Obergefell. Indeed, Justice Thomas in his concurrence expressly calls for their reconsideration. (Slip op. at 3.) As Justices Breyer, Sotomayor, and Kagan in their joint dissent stated, Roe, Casey, Lawrence, and Obergefell “are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.” (Slip op. at 4-5; see also id. at 16-17.) Whether that fabric is now rent beyond remedy, only time and the Court can say.
