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Two years later, the overturning of Roe v. Wade is still sending aftershocks through the legal system. Apart from the abortion cases at the Supreme Court this term, the effects of Roe’s replacement — Dobbs v. Jackson Women’s Health Organization — were felt last week in a superficially unrelated decision about immigration.
The question was whether a U.S. citizen has a right to due process if the government decides to deny a visa to her non-citizen spouse. The conservative majority said no, interpreting the fundamental right to marry narrowly — an echo of the narrowing of fundamental autonomy rights in Dobbs.
The dissent, written by Justice Sonia Sotomayor and joined by the court’s other two liberals, insisted that the majority’s position erred in the same way Dobbs did, by weakening fundamental rights under the due process clause.
There aren’t five votes on the Supreme Court today to overturn the right to marriage that underlies the gay marriage decision, Obergefell v. Hodges. But other due process-related rights may be vulnerable to denial or erosion under the Dobbs approach.
The case, Department of State v. Munõz, was brought by Sandra Munõz, a prominent workers’-rights lawyer in Los Angeles, after the State Department refused her non-citizen husband a visa.
The details are important to the case: The couple met in the U.S. in 2008, married in 2010, and had a child. In 2013, Munõz filed the relevant paperwork with the government asking for her husband to be considered for citizenship. The rules required the husband to go back to his home country of El Salvador and then be readmitted to the U.S., a not unheard-of situation. Munõz therefore also asked for a waiver to be sure her husband could come back once he was approved, which the State Department granted.
The husband went back to El Salvador in 2015 — but the process then went awry. After his interview with a U.S. consular official in El Salvador, the husband was denied a visa on the basis of a statute that says officials may deny entry to people they suspect will engage in unspecified “unlawful activity.” The government initially gave Munõz no further reason, apparently its normal practice when it denies admission under this provision.
Munõz thought the government must have incorrectly concluded that her husband was associated with the MS-13 gang because of some of his tattoos, but she couldn’t be sure. She sued, arguing that under the due process clause of the Constitution, she had both a fundamental liberty interest in living with her husband in the U.S. and also a right to have the government explain its decision if it barred him from coming back to live with her.
Eventually, the government confirmed that the MS-13 fear was the reason for denying her husband entry. The U.S. Court of Appeals for the Ninth Circuit held that the State Department had violated Munõz’s rights by not telling her earlier, when her husband could’ve provided evidence that he wasn’t a gang member.
The Supreme Court’s majority opinion, written by Justice Amy Coney Barrett, treated the case as a claim by Munõz that she had a fundamental right under the Constitution to reside with her non-citizen husband in the U.S. That right, the court held, was not deeply rooted in the nation’s traditions, and so did not count as a fundamental right under the due process clause. The structure of the analysis was similar to the court’s analysis of the right to an abortion in Dobbs: There, the court held that the right to an abortion was not in fact fundamental because it wasn’t deeply rooted, notwithstanding the court’s holding to the contrary a half-century ago in Roe v. Wade.
Sotomayor’s dissent harshly attacked the conservative majority, pointing out that in Dobbs the court had claimed its decision did not “undermine … in any way” other fundamental rights like “the right to marry,” “the right to reside with relatives,” and “the right to make decisions about the education of one’s children.” Now, Sotomayor wrote, “the Court fails at the first pass” in upholding those rights.
To be sure, Sotomayor did not say that there is a fundamental constitutional right to live with one’s noncitizen spouse in the U.S. Rather, she argued that because a citizen has a fundamental right to marry, she has a liberty interest in living with her spouse that in turn triggers an obligation that the government explain itself if it denies the spouse entry.
The majority’s mistake, Sotomayor, maintained, was “the same fatal error it made in Dobbs, requiring ‘too careful (a) description of the asserted fundamental liberty interest.’” The idea is that Barrett chose to define the fundamental right too narrowly, thus limiting the reach of the constitutional guarantee.
Put another way, when it comes to fundamental rights analysis, it’s all about the way you define the right. Define it narrowly, and you get conservative outcomes like Dobbs or the Munõz case. Define the right broadly, and you get outcomes that protect fundamental rights more fully.
The upshot is that a case like Dobbs can never truly be limited to its facts, the way Justice Samuel Alito’s majority opinion in Dobbs claimed to do. It has a gravitational pull on other decisions that turn on analogous legal questions.
We will be talking about Dobbs, and worrying about its effects, for the foreseeable future, unless and until it, too, is overturned.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”