William & Mary Bill of Rights Journal
Abstract
This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social rights that set the Court on a collision course with the Slaughter-House Cases. Dangers on the economic rights front include reviving Lochner and its political economic principles in new constitutional garb. Dangers on the social rights front, by contrast, include new constitutional family law rules written from the social-conservative right, overriding constitutional and positive law developments that, since the 1960s, have broadly managed family law from and toward the liberal to progressive left. In both these areas, the Court’s decisions would be capable of catching various sex equality protections in their snares. The future in relation to all these prospects may be set by Justice Brett Kavanaugh, the swing-vote justice in Dobbs. So, this Article attends to the determinants of Kavanaugh’s Dobbs concurrence, and thus Dobbs’ meaning. While matters could obviously get much worse for sex equality rights after Dobbs, Kavanaugh’s concurrence also offers some reason to hope that they won’t. Struggles for sex equality rights may be intensifying and entering distinctively perilous times. Their future, however, has yet to be determined, including by the Supreme Court.