From Roe to Obergefell, Part II: Protecting Marriage Equality

In my last post, I considered the possibility that Justice Samuel Alito’s leaked Dobbs v. Jackson draft might signal a threat to other judicial precedents when future cases arrive at the Court. Focusing on Obergefell v. Hodges‘s protection of same-sex marriage, I answered the first three of five related questions:

  • 1. What was Obergefell v. Hodges?
  • 2. How might Justice Alito’s leaked Dobbs reasoning relate to Obergefell?
  • 3. Would this Supreme Court actually act on this reasoning if a case challenged Obergefell?

I concluded that federally protected same-sex marriage is indeed vulnerable to a strong challenge by conservatives who want to use Dobbs as a turning point. I’d like to now pivot to how liberals might react to the loss of Roe and potential challenge to Obergefell. My final two questions are:

  • 4. What are the best pro-Roe and –Obergefell legal arguments?
  • 5. And what are the political implications of a threatened Obergefell?

So let’s get to it. (A lot of what follows will lack context without Part I, so go read that first.)


4. What are the best pro-Roe and –Obergefell legal arguments?

Continue reading “From Roe to Obergefell, Part II: Protecting Marriage Equality”

First Roe, Next Obergefell?

Last week’s emergency post on the Dobbs v. Jackson leaked draft gave PPFA is highest weekly readership of the year, so I’m here to give the people more of what they want.

As I noted in that post, both the ruling itself and the fact that there was a leak are each really big deals and deserve attention from the media and our lawmakers, although depending on one’s partisanship they’ve chosen to emphasize one or the other. I also discussed the potential political implications of Roe v. Wade getting overturned, including, perhaps, a badly needed adrenaline boost into the arm of Democratic Senate candidates.

Today, however, I want to speculate about where else this conservative-leaning Supreme Court might make itself felt. There’s one prior SCOTUS case in particular that might be in its crosshairs: 2015’s Obergefell v. Hodges, which legalized same-sex marriage coast to coast.

If the Court applies the same logic to Obergefell as it did Roe, I’m not sure how long the precedent will last. To best understand why, today I want to answer the following questions:

  1. What was Obergefell v. Hodges?
  2. How might Justice Alito’s leaked Dobbs reasoning relate to Obergefell?
  3. Would this Supreme Court actually act on this reasoning if a case challenged Obergefell?
  4. What are the best pro-Roe and –Obergefell legal arguments?
  5. And what are the political implications of a threatened Obergefell?
Continue reading “First Roe, Next Obergefell?”

Nine Takeaways on the Dobbs v. Jackson Leak

(Note to readers: today was supposed to be Part II of my Six Months Out preview of the midterms. In it, I was going to tell you who was going win the Senate. I even had the podcast episode ready to drop at the same time. But apparently some leaker, working in cahoots with Politico, didn’t want you to have that information yet, so they’ve distracted me with the most dramatic Supreme Court development in decades. I’ll push back my Senate preview to tomorrow.)

(Sorry this took so long. I have a job.)

WHOA! For so many reasons, the leaked draft of the majority opinion in Dobbs v. Jackson is the most important Supreme Court story I can remember. Let’s waste no time. In honor of the nine justices who are now eyeballing each other like characters in an Agatha Christie novel, here are nine things to know about this dramatic development.

Continue reading “Nine Takeaways on the Dobbs v. Jackson Leak”

Abortion, Part III: Dobbs v. Jackson (and the Looming Demise of Roe v. Wade)

We’ve now looked at abortion-related moral and political philosophy, abortion polling, abortion’s history in the United States, Griswold v. Connecticut‘s establishment of the right to privacy, Roe v. Wade‘s role in legalizing abortion nationally, and Planned Parenthood v. Casey‘s modification of Roe‘s holding.

On to Part III…


One Supreme Court justice from Planned Parenthood v. Casey is still on the bench — Clarence Thomas, who is now in his 31st year on the Court. Thomas signed on to the dissent in Casey that stated, “We believe that Roe was wrongly decided, and that it can and should be overruled.”

It’s clear that Justice Thomas hopes the Supreme Court of the United States (SCOTUS) will overturn Roe, and about 30% of Americans join him in that hope. To overturn Roe‘s precedent, pro-life advocates have hoped that, one day, the Court might be conservative enough to overrule it.

That day might be nigh. Since Roe, states have periodically passed laws averse to it, but federal courts regularly issue injunctions and overturn such laws, so they never go into effect. The Supreme Court rarely even hears an abortion case; instead, a lower court strikes down the law, and upon appeal SCOTUS declines to “grant cert.” (Granting cert, or a “writ of certiorari,” is when at least four justices think the Court should hear an appeal, and it therefore asks for the evidence and testimony from lower court rulings.) The lower court ruling therefore stands, and the law remains struck down.

However, thanks to a rightward lurch during Donald Trump’s presidency, the Court now has six conservatives (Chief Justice John Roberts — more moderate than conservatives would like, but still right-leaning — and associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). They serve alongside just three liberals (associate justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan).

Last year, an abortion case — one that could substantially roll back Roe and/or Casey — came to them. If the Court granted cert, that alone would mark a shift in the Court’s philosophy regarding those important precedents, and it could be a harbinger of a dramatic undoing of Roe when the Court issues its ruling.

The question was — would the justices agree to hear the case?

They did.

The case is Dobbs v. Jackson Women’s Health Organization, and it might transform United States abortion law. For that reason, today we’ll take a close look at it. I’ll split the post into three phases:

  1. Facts of the case and lower court decisions
  2. Oral arguments from each side — including justices’ reactions to those arguments
  3. Considerations and predictions for the June ruling

(And remember, a podcast will be forthcoming!)

Continue reading “Abortion, Part III: Dobbs v. Jackson (and the Looming Demise of Roe v. Wade)”

Abortion, Part II: Abortion and the Law (the “right to privacy” & Roe v. Wade)

Remember, today’s post will be reissued as an episode on PPFA’s new podcast feed, available on Anchor, Spotify, and Apple. Go become a subscriber so you know when the episode drops!


Now that we’ve considered some of the political and philosophical opinions on abortion, let’s examine the legal ones. Today’s post has three phases:

  1. A brief history of abortion law in America, from the colonial era through the 1960s
  2. Griswold v. Connecticut (1965), which identified a right to privacy under the Constitution
  3. Roe v. Wade (1973), which used a right to privacy as a premise for decriminalizing abortions

Due to the subject matter, I’m going to avoid any jokey writing.

Okay, I’ll have one joke. See if you can find it. (Starting now.)

Continue reading “Abortion, Part II: Abortion and the Law (the “right to privacy” & Roe v. Wade)”