The Supreme Court and Dobbs: For Once, the Sexual Revolutionaries Aren’t Wrong

COMMENTARY: Once the Supreme Court stops propping up the sexual revolution with so-called rights invented out of thin air, a lot of ‘settled issues’ will be unsettled.

The Supreme Court's decision on Dobbs v. Jackson Women's Health could have a domino effect.
The Supreme Court's decision on Dobbs v. Jackson Women's Health could have a domino effect. (photo: Carolina.Ruiz / Shutterstock)

The sexual revolutionaries are not wrong to be fretting over “gay marriage” and contraception, but not necessarily for the reason they think. 

They should be worried, regardless of any assurances the Supreme Court justices may give in their soon-to-be-released opinion on Dobbs v. Jackson Women’s Health. They should be worried, regardless of whether we pro-lifers are really as nefarious as they think. They should be worried, for one simple reason: Once the court stops propping up the sexual revolution with so-called rights invented out of thin air, a lot of “settled issues” will be unsettled. 

Although in his draft of a Roe decision, Justice Samuel Alito said it would not impact other so-called rights, like “gay marriage,” logic would suggest otherwise. Mandating an unlimited abortion license required the Supreme Court to invent rights in the Constitution that simply aren’t there. There’s no right to privacy, which the court claimed to find in the First Amendment.  

This imaginary right to privacy was the foundation for Griswold v. Connecticut and Eisenstadt v. Baird, as well as Roe. In 1965, Griswold found a right to “marital privacy,” which was the basis for prohibiting the states from enacting regulations on contraception that affected married couples. In 1972, Eisenstadt extended that right of privacy from married couples to unmarried individuals. This confirmed the suspicions of the defenders of traditional morality: that thing you say you want (contraception for married couples with serious health issues) is not really all you want. Impose one invented “right” on the populace and the legal infrastructure will quickly morph into something much bigger.  

Eisenstadt provides the foundation for federal policies promoting contraception, such as mandating that minors receive “reproductive health services” without their parents’ knowledge. Medicaid, the health program for the poor, actively promotes contraception.  

Contraception is a mandatory part of state Medicaid programs and is reimbursed at the most highly favored rate. Contraception must be made available to minors over the age of puberty, even without the consent of their parents. Under Medicaid rules, contraception must be free to welfare recipients, without even a nominal co-pay. And state governments have an incentive to actively promote family-planning services, especially to minors, since their outreach, advertising and sex-education expenses are reimbursed at the most favorable rate of 90%. These rules were enacted as part of the first major overhaul of The Great Society, in 1972, the same year as the Eisenstadt decision. As I said in my book, The Sexual State (pp. 107-108): 

“It is not now, and never has been, the government’s policy to simply make contraception legally available and accurately labeled and then leaving families to use as they wish. The federal government has been and continues to be an active promoter of contraception. We do not have a ‘libertarian’ policy in this area. Allowing people to make their own decisions about contraception has never been enough for the true revolutionary.”   

Allow me to add: True libertarians who value limited government and individual choice should be appalled at this history. They will read Daniel Moloney’s 2009 three-part series with smoke coming out of their ears.  

The First Amendment held pride of place in the Bill of Rights. The First Amendment was enacted to protect freedom of speech and religion. It says nothing about privacy, let alone abortion or the government actively promoting contraception to minors.  

And there is no right to “gay marriage” in the 14th Amendment. The 14th Amendment was ratified after the Civil War to prevent Southern states from abridging the rights of ex-slaves. Only justices bent on legislating from the bench could interpret that as requiring same-sex marriage nationwide. Roe v. Wade was decided more than 49 years ago. But Obergefell v. Hodges — which mandated homosexual civil marriage nationwide — was only decided in 2015. Doesn’t that make Obergefell a weaker precedent than Roe

Skinner v. Oklahoma is a case often cited by same-sex marriage activists in support of a “fundamental right to marry.” However, the context of Skinner was a eugenics law. Under Oklahoma law at the time, Mr. Skinner could be sterilized because he met the definition of a “habitual criminal” under the statute. He had three larceny convictions, including one for stealing chickens. When the Supreme Court overturned sterilization as a penalty, they were saying that sterilizing him amounted to an infringement of his “fundamental right to marry” and found a family. The state of Oklahoma was about to make poor Mr. Skinner damaged goods in the marriage market.  

In other words, the “fundamental right” in Skinner presumes that marriage is fundamentally about procreation. Citing this case in the context of the intrinsically sterile union of same-sex couples, as the court did in the cases leading up to and including Obergefell v. Hodges, is a complete non sequitur.  

Maybe we’ll get to talk about this sometime.  

There is one important difference between Roe and Obergefell, though: Roe galvanized the pro-life community and created a vibrant, authentically grassroots nationwide movement. After Obergefell, proponents of marriage threw up their hands and said, “Oh, well, we tried” and moved on to other issues. The right-to-life movement never gave up. 

We are fighting transgenderism in 2022 precisely because we gave up on marriage in 2015. Obergefell degendered marriage, which led to removing gendered words from legal documents. “Husband” and “wife” were replaced with “spouse” or “partner.” “Mother” and “father” became androgynous “parents.” No wonder we’re fighting transgenderism in schools. 

There is ample precedent for the Supreme Court making mistakes. In the 1858 Dred Scott decision, it said “the black man has no rights a white man is bound to respect.” Roe and its misbegotten progeny declare, in effect, that the unborn person has no rights a born person is bound to respect.  If the Supreme Court does overturn Roe, many other invented “rights” will be up for grabs.  

Jennifer Roback Morse has a Ph.D. in economics and has taught at Yale and George Mason University. She is the author of The Sexual State — How Elite Ideologies Are Destroying Lives and Why the Church Was Right All Along. She will present: “Defending Traditional Christian Sexual Ethics Like a Pro” at the Ruth Institute’s upcoming Fifth-Annual Summit for Survivors of the Sexual Revolution June 24-25 in Lake Charles, Louisiana.