Limiting Fundamental Rights to Only Those Founded upon Longstanding History and Tradition Undermines the Court's Legitimacy and Disavows Individual Human Dignity

The Supreme Court's anti-abortion opinion in Dobbs v. Jackson Women's

Health Org., which overruled Roe v. Wade and Planned Parenthood of S.E.

Penn. v. Casey, on the one hand suggests that the Court may be moving

toward eliminating all non-enumerated fundamental rights not deeply

rooted in the Nation's longstanding history and tradition. On the other hand,

it may suggest only that the Court might be just opening the door to

overruling specific non-enumerated rights with which it no longer agrees.

Either way, many long-recognized, non-enumerated, human rights, beyond

abortion that are essential to individual autonomy and human dignity are

now up for grabs. Such rights in the area of privacy law will most likely

include not just abortion, but also contraception, interracial marriage, and

the Court's more recent recognition ofsame-sex marriage, and possibly still

other precedents, including whether states can criminalize adult consensual

same-sex behavior in private. More importantly, the proposed foundation

for this Court's potential departure from its past case precedents cannot be

justified even by claiming such rights are not deeply rooted in the Nation's history and tradition. As I hope to show in this article, neither from the point

of view of looking to this Nation's longstanding history and traditions, if

properly understood, nor from the point of view of allowing Equal

Protection to aid in identifying forms of discrimination not previously

recognized or afforded much attention, can departures from past human

rights precedents based in autonomy be justified.