Tracing an Inferred Right

An inferred right is traced by asking, at each step, what the Court said the right covered and what it left to legislatures.

Take privacy across four decisions. First, Griswold in 1965: the Court reads privacy out of several amendments together and strikes a contraception ban — the right now exists, though no clause names it. Second, Roe in 1973: the Court extends that right to the decision to end a pregnancy and sets a trimester framework, so the right widens. Third, Casey in 1992: the framework goes, the undue burden test arrives, and restrictions before viability stand unless they place a substantial obstacle — the right survives while its test changes. Fourth, Dobbs in 2022: the Court holds the Constitution confers no such right and returns the question to elected legislatures, so the right contracts to nothing at the federal level while other privacy applications, Lawrence among them, remain. Read the four together and the pattern is the lesson.