Legal expert explains why abortion decision is important to understand ‘well beyond the issue of reproductive rights’

In Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court stripped away the constitutionally protected right to an abortion by concluding in a 5-4 vote that it was not a form of “liberty” protected by the 14th Amendment, with Justice Samuel Alito writing in the court’s majority opinion that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

“The Court reads [the 14th Amendment] in a very, very narrow way in Dobbs to say it's not about abortion,” Olatunde Johnson, an award-winning professor at Columbia Law School, said during a virtual event hosted by MAKERS and the Women’s Inclusion Network (WIN) at Yahoo on Aug. 2. While discussing the implications of that ruling with Missy Schnurstein, a global co-lead in the U.S. for WIN, Johnson explained why the court’s “narrow” reading of the 14th Amendment should give Americans pause not just on abortion rights.

“A lot of things aren't actually explicitly written in the Constitution, particularly since it was written by a bunch of white men hundreds of years ago,” Schnurstein observed. “They couldn't possibly have foreseen how things would change.”

Johnson agreed, and she explained that this is the reason she believes that the Dobbs decision is important to understand “well beyond the issue of reproductive rights and women’s rights.”

“It's also about the Supreme Court,” Johnson said. “They say all the time that they need to really follow what the founders and the drafters of the Constitution say. They don't always do it consistently at all. But we have to ask ourselves, as people who are governed by this Constitution, whether that is the approach that we want. Do we want a Constitution that's frozen in time?”

The 14th Amendment doesn’t mention groups such as women and LGBTQ people, but Johnson said it has since been interpreted to include protections for them. Ratified in 1868, the 14th Amendment extended liberties and rights granted by the Bill of Rights to formerly enslaved people, and says, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

“All those other precedents that have to do with things like same-sex marriage and contraception, interracial marriage, they're all based on the same notion of liberty,” Johnson says.

Although the Supreme Court noted in its decision that the abortion ruling wouldn’t affect other cases, some worry that precedents relying on 14th Amendment due process protections may also be vulnerable if a similar reading of the 14th Amendment is used in the future. Fueling concerns that other rights may be in jeopardy, in a concurring opinion Justice Clarence Thomas wrote that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — referring to cases guaranteeing the right to access contraceptives, banning laws criminalizing same-sex relations and legalizing same-sex marriage, respectively.