It occurred to me today that I should write down a concern I've had since Dobbs overruled Roe, even though it may never prove prescient. After all, one never knows when one will be hit by the proverbial truck.
The majority opinion in Dobbs stated emphatically that the decision had no affect on, and had nothing to do with, precedents (prior binding legal decisions) on issues other than abortion. The precedents in question, including those establishing the right to same-sex marriage and to use contraception, are, like Roe -- and more explicitly, Casey, which reaffirmed Roe decades later -- based on the idea of "substantive due process." The doctrine of substantive due process requires that one interpret the Fourteenth Amendment's phrase "due process" as involving more than simply process, or procedure, but also encompassing substantive rights -- or at least, the "fundamental" ones.
Troxel v. Granville, the Supreme Court case that for the first time explicitly protected fundamental parental rights in the concept of grandparent visitation, is also based on substantive due process, although the plurality opinion (there was no majority opinion) referred only to "the Due Process clause" without that revealing adjective. (Concurring and dissenting opinions did use the full phrase.)
Back to Dobbs. While Justice Thomas joined the majority opinion, he also wrote a separate concurring opinion in which he -- not for the first time -- criticized the notion of substantive due process, calling it "an oxymoron that lacks any basis in the Constitution." Thomas noted that no party to the Dobbs case had asked the Court to decide to reexamine all the Court's Fourteenth Amendment precedents. Therefore -- because this broader question was not presently before the Court -- he agreed that Dobbs didn't cast doubt on those other Fourteenth Amendment cases. But he stated that in future cases, the Court should (presumably, after this hint, with the proper briefing from the parties involved) reconsider all its substantive due process precedents. That would include Troxel, although Thomas did not include it in his list of examples.
Thomas went on -- again, not for the first time -- to mention the Fourteenth Amendment's Privileges or Immunities Clause, which states that no state may make or enforce any law that would "abridge the privileges or immunities of citizens of the United States." This clause was essentially rendered a dead letter by a series of late 19th century cases, at least as far as any rights not mentioned in the first eight amendments are concerned -- but it could be revived, particularly if "substantive due process" bites the dust. The question would then become just how many rights, other than those listed in the first eight amendments, are protected as "privileges or immunities." In his concurring opinion in Troxel, Thomas included a footnote stating that Troxel did not involve a challenge based on the Privileges or Immunities Clause, and thus did not provide an opportunity to reevaluate the meaning of that clause.
For what it's worth, I think that Justice Thomas's concurring opinion is more forthright on the subject of the non-abortion substantive due process cases than is the majority opinion. And I think that some enterprising grandparent (or other nonparent) will, sooner or later, challenge Troxel, and any state precedent based on Troxel, on the ground that its constitutional reasoning was flawed. (Note: some state supreme courts have found independent state constitutional grounds for protecting parental rights as much as, or more than, Troxel did.)
I therefore hope that in the meantime, those for whom a Supreme Court case gutting parental rights would be disastrous will prepare to fight for those rights using arguments other than substantive due process. These arguments should, I submit, include arguments in favor of rehabilitating the Privileges or Immunities Clause. I have the impression that plenty of scholars and historians have criticized the 19th century cases in question (perhaps appropriately known as the Slaughterhouse Cases) -- so arguments should not be too hard to come by.
Whatever rights the Privileges or Immunities Clause might be held to protect, they are likely to include rights that (to quote some often-used language) are "objectively, deeply rooted in this Nation’s history and tradition." Parental rights should qualify.
Finally, whether or not a parent's state Supreme Court has already found that its state constitution protects parental rights, any parent facing the need to bolster state law on the subject should prepare to make a state constitutional argument.
