The Supreme Court Isn’t Coming for Your Condoms — It’s Coming for Economic Regulation
After Dobbs, liberals are warning of a Supreme Court assault on personal liberties like sexual autonomy, contraception, and even interracial marriage. But the court actually has its sights on social and labor protections — and progressives are unprepared.
Visitors leave the Supreme Court in Washington, DC on October 31, 2022. (Eric Lee for The Washington Post via Getty Images)
After Roe v. Wade was overturned in June, the progressive legal commentator Mark Joseph Stern wrote that the US Supreme Court would now conduct “an all-out assault on . . . gay rights, marriage, and contraception, among other personal liberties,” declaring that “these rights are now in grave and immediate jeopardy.” Various prominent thinkers in the progressive legal world — including Amy Gajda, Leah Litman, Melissa Murray, Kate Shaw, and, from the bench of the Supreme Court, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — have expressed similar fears. The American Civil Liberties Union even hosted a discussion on “how dismantling Roe puts interracial marriage at risk.”
These fears are unfounded. The conservative legal movement, after its triumph in overturning Roe, is not now coming for your condoms, reimposing Jim Crow standards of morality, or declaring war on gay couples. In reality, the greatest future threat posed by the conservative legal movement is not that it will take away these various rights but that it will revive rights long marginalized by the courts, especially so-called economic liberties. These liberties have already been invoked to undermine the labor movement, and, now that the fight against Roe is out of the way, conservative activists and judges are eager to attack a wide range of social protections across the country.
Why a Post-Roe Attack on Privacy and Autonomy Is Unlikely
To be sure, the claim that the end of Roe is phase one of a broader judicial assault on privacy and autonomy is based on a rational premise. Although Justice Samuel Alito, in his Dobbs v. Jackson Women’s Health Organization opinion, tried to emphasize that the decision was limited to abortion, the logic that he and his five conservative colleagues used to strike down Roe v. Wade seems to have ominous implications. While Alito conceded that the Supreme Court does and should protect certain “unenumerated” rights that are not explicitly written in the Constitution, he argued that this protection should be limited to rights that are “deeply rooted in the nation’s history and tradition.”
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