In 2022, in the case Dobbs v. Jackson Women's Health Organization, the Supreme Court ruled that the Constitution does not guarantee a right to privacy and, therefore, does not protect abortion. This ruling overturned the previous Roe v. Wade ruling from 1973, which held that the Constitution guaranteed a right to privacy. This drastic reversal of position unleashed a watershed of bills, both new and old, designed to tackle abortion as a policy position. Some states reverted to old laws from pre-Roe, while others set about setting new laws. Some states worked to codify access to abortion, while others worked to ban abortion altogether and everything in between. While these debates have reemerged within the last two years for the first time in nearly five decades, they are certainly not new and are unlikely to stop.
The Dobbs ruling did not merely strike down the Roe ruling but began laying the groundwork for a more conservative trend across many other realms of civil rights. Namely, this ruling called into question other decisions that rest on an implied right to privacy in the Constitution, including Loving v. Virginia, which codified the right to interracial marriage, Griswold v. Connecticut, which guaranteed access to contraception, and Obergefell v. Hodges, which asserted the right to same-sex marriage. Though the Supreme Court’s majority opinion attempts to assure its readers that the Dobbs decision will not impact those rights, Justice Thomas’s concurring opinion suggests that the Court should consider doing just that. Justices Breyer, Kagin, and Sotomayor’s dissent begins to wrestle with this very issue.
While the Court has not yet reversed these decisions, practitioners need to begin wrestling with the issue raised by the dissenting opinion and preparing for what may come regarding the resurfacing of zombie laws, as we saw with abortion restrictions. “Zombie laws” is the colloquial term for those laws which can be either statutory or constitutional provisions that have been ruled unconstitutional but remain on the books. They are dead in the sense that they cannot be applied, but they are alive in the sense that they can be used in the future should the constitutional landscape change.
As we saw in the immediate wake of the Dobbs decision, dormant zombie laws become enforceable once the Supreme Court reverses course on the relevant issue. This was the case with abortion laws in many states, including Arizona and Wisconsin, which faced public pressure to repeal their laws. However, importantly, abortion is not the only issue for which states have zombie laws on the books. For example, the right to contraception is an issue that is closely tied to abortion but is not synonymous and could find itself on the chopping block. In 1965, the Supreme Court ruled in Griswold v. Connecticut that banning contraception was unconstitutional. This decision rested on the foundations of a right to privacy, which would ultimately be solidified in Roe and then torn down in Dobbs. If Griswold were to be struck down, only 14 states and DC would have a guaranteed right to contraception, with 7 of these laws being passed immediately following the Dobbs decision. The other 36 states would be left to figure out where their state sits if this decision were to fall. Additionally, at the federal level, Congress attempted to pass federal protection for contraception in the post-Dobbs Right to Contraception Act. However, a number of senators blocked this initiative, so it never passed the Senate.
Another right that may be called into question with the loss of the constitutionally protected right to privacy, though in a slightly different vein, is the right to marry regardless of sex. In Obergefell v. Hodges, the Supreme Court, ruling in line with the Constitution’s implicit right to privacy as held in Roe, ruled that same-sex couples have an equal right to marry as their opposite-sex counterparts. Despite this declaration of the constitutionality of same-sex marriage equality, or perhaps because of it, several states have neglected to strike prejudicial marriage laws from their books. If the Supreme Court were to strike down Obergefell, same-sex marriage would be illegal in 13 states, and sodomy would be criminalized in 12. In each of these states, the only thing protecting the rights of same-sex couples to marry is the rights codified in Obergefell. As it sits now, if the Supreme Court were to overturn Obergefell, these dormant laws would retake effect until repealed by their state legislatures. Complicating the matter further, in 2022, Congress passed the Respect for Marriage Act, which requires all states, regardless of whether they have legalized same-sex marriage, to recognize the marriage status of same-sex couples who were married in a state that legalizes it.
While these issues are the ones that have been most discussed, it is essential to recognize that with the Supreme Court trending ever more conservatively and with another Republican administration set to take over the executive branch, the issue of questionable zombie laws remaining on the books across the country is likely to become a more significant issue than it has been in the previous decades. While the average practitioner can’t challenge the dicta coming out of the Supreme Court, practitioners across the country must take stock of what zombie laws are on the books in their states and begin to think critically about what their states would look like should those zombie laws come back to life.