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04/21/2023

Contraception and Dobbs
David Weisberg

In his much-commented-upon concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Thomas asserts that the Court  “should reconsider all of this Court’s substantive due process precedents, including GriswoldLawrence, and Obergefell.” Although no other Justice joined in that concurrence, it continues to worry those who believe that the ability to obtain and use contraceptives protected by Griswold, like the right to abortion announced in Roe v. Wade and rejected in Dobbs, might disappear in the near future. 

The latest manifestation of worry is an article by Prof. Miranda McGowan, “The Democratic Deficit of Dobbs,” which has an abstract that ends with these ominous words:

The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.

I submit that, in the age of the internet, even if Griswold were overturned (which I think is wildly unlikely), the effect on access to contraceptives would be practically zero.

Let’s assume Griswold is overturned because Justice Thomas convinces four other Justices that substantive due process is nonsense.  State X then passes a law making it a crime for anyone (a) to manufacture any contraceptive device or medication in State X, (b) to prescribe or dispense any contraceptive device or medication in State X, (c) to possess or use any contraceptive device or medication in State X, or (d) to engage in sexual relations in State X with anyone who uses any contraceptive device or medication.  It is also safe to assume, I submit, that there will be other States, and other countries in the world, that pass no such law. 

What do people in State X who want to use contraceptives then do?  Obviously, they go onto the internet and order those products (which presumably have been manufactured outside of State X) from some provider located outside of State X.  They then receive those products via the U.S. mail or some delivery service operating in interstate commerce.  And they then use them when having sex.  What can State X do in response?  Essentially, nothing.  Why?  Because, even if the Constitution cannot properly be understood to support the concept of substantive due process, it does include the Commerce Clause.   

It’s true that Justice Scalia wrote, in his dissent in Comptroller of Treasury of Maryland v. Wynne, that the concept of a dormant Commerce Clause is “a judicial fraud.”  But the question decided affirmatively by the Court in Wynne involved very abstract issues of tax law, specifically: “Does the dormant Commerce Clause of the Constitution prohibit states from taxing all the income of their residents by mandating a credit for taxes paid related to income earned in other states?”

I think even Justice Scalia would have agreed that State X does not have the right to interfere directly with the physical flow of interstate commerce by trying to stop certain articles—none of which have been banned from interstate commerce by the federal government, and many of which have F.D.A. approval for use as contraceptives—from being transported into State X.  State X could not set up border control stations to stop and inspect trucks carrying packages into the State without violating the Commerce Clause.  And there can be no question that State X does not have the right, dormant Commerce Clause or no dormant Commerce Clause, to interfere with the normal, routine functioning of the U.S. mail. 
 
So, contraceptive materials will end up in the hands of just about anyone in State X who wants them.  When they are put to use, that presumably will occur in a private setting where no potential adverse witnesses are present.  Thus, State X will neither be able to prevent contraceptive materials from being acquired by people in the State, nor will it be able to prove that people used those materials in the State.  Sometimes, the sky doesn’t fall.