Potential Effects of Dobbs v. Jackson Women’s Health on Civil Commitment Law

Abstract

Since the publication of the U.S. Supreme Court’s decision in Dobbs v Jackson Women’s Health in June of 2022, much attention has been paid to the direct effects of that decision on reproductive health care for pregnant or potentially pregnant individuals; and to the potential effects of the Court’s approach in Dobbs to other established precedent related to privacy and autonomy, such as rights to contraception and marriage equality. This Article will explore another potential negative consequence of Dobbs; its potential effect on the constitutional parameters of the law of civil commitment and involuntary medication of the mentally ill.

The foundational Supreme Court case establishing the parameters of the State’s right to involuntarily commit an individual to a mental institution was decided only two years after Roe v. Wade. In 1975, the Supreme Court in O’Connor v Donaldson held that an individual has a liberty interest in “prefer[ring] one’s home to the comforts of an institution,” and that a State could not, “without more,” confine a non-dangerous individual. The two-prong test of requiring a showing of both mental illness and dangerousness to one’s self or to others has remained the cornerstone of civil commitment law ever since.

The language and analysis of O’Connor is similar to that of Roe, the abortion rights case overturned by Dobbs. In particular, the grounding of the right to avoid civil commitment in the individual liberty and privacy interests are common themes in the two cases. The current Court, in its decision in Dobbs, has cast substantial doubt on the continued vitality of that analysis; and one can easily imagine a reconceptualization of O’Connor along the lines of Dobbs that substantially alters the requirements for civil commitment. In particular, the reliance in Dobbs and other recent Supreme Court opinions on historical precedent as a linchpin of originalist analysis could lead the Court to search for justifications in colonial or 19^th-century mental health practices, time periods which predate modern psychiatric science.

This Article will explore the parallels in approach between Roe and O’Connor, and will suggest ways in which the post-Dobbs Supreme Court majority might disrupt the civil commitment status quo, including potential expansion of civil commitment or other detention of pregnant individuals for the protection of the fetus; and possible relaxation of the dangerousness requirement for civil commitment articulated in O’Connor.

I. Introduction

Since the publication of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization ¹ in June of 2022, much attention has been paid to the direct effects of that decision on reproductive health care for pregnant or potentially pregnant individuals; ² and to the potential effects of the Court’s approach in Dobbs to other established precedent related to privacy and autonomy, such as rights to contraception and marriage equality. ³ This Article will explore another possible consequence of Dobbs: how it bears upon the constitutional parameters of the law of civil commitment and involuntary medication of the mentally ill.

The foundational Supreme Court case establishing the parameters of the State’s right to involuntarily commit an individual to a mental institution was decided only two years after Roe v Wade. ⁴ In 1975, the Supreme Court in O’Connor v Donaldson ⁵ held that an individual has a liberty interest in “prefer[ring] one’s home to the comforts of an institution,” ⁶ and that a State could not, “without more,” confine a non-dangerous individual. ⁷ The two-prong test of requiring a showing of both mental illness and dangerousness to one’s self or to others has remained the cornerstone of civil commitment law ever since. ⁸

The language and analysis of O’Connor and subsequent cases such as Addington v Texas ⁹ is similar to that of Roe and Casey, ¹⁰ the abortion rights cases overturned by Dobbs. In particular, the grounding of the right to avoid civil commitment in the individual liberty and privacy interests are common themes in the two lines of cases. The current Court, in its Dobbs decision, has cast substantial doubt on the continued vitality of that analysis; one can easily imagine a reconceptualization of O’Connor along the lines of Dobbs that substantially alters the requirements for civil commitment. ¹¹ In particular, the reliance in Dobbs and other recent Supreme Court opinions on historical precedent as a linchpin of originalist analysis could lead the Court to search for justifications for civil commitmentin colonial or nineteenth-century mental health practices, time periods which predate modern psychiatric science. ¹²

This Article explores the parallels between Roe and O’Connor and suggests ways in which the post-Dobbs Supreme Court majority might disrupt the civil commitment status quo, including potential expansion of civil commitment or other detention of pregnant individuals for the protection of the fetus and possible relaxation of the foundational Constitutional requirements for civil commitment articulated in O’Connor.

II. Dobbs v. Jackson Womens’ Health Organization

The Dobbs v Jackson Womens’ Health Organization opinion represents the culmination of decades of work by antiabortion activists, lawyers and politicians. ¹³ While earlier cases had eroded the protections provided originally by Roe, ¹⁴ Dobbs takes the final step, long-desired by conservative activists, of overturning Roe entirely and “return[ing] to the people and their elected representatives” ¹⁵ the power to regulate or ban abortion entirely.

Dobbs arose out of a legal challenge to a 2018 Mississippi statute ¹⁶ banning abortion after fifteen weeks of pregnancy, the Gestational Age Act. This state statute itself was part of a wave of legislation explicitly aimed at overturning Roe and Casey. ¹⁷ The District Court for the Southern District of Mississippi, following the precedents of Roe and Casey, held that this statute was unconstitutional, ¹⁸ and permanently enjoined its enforcement. ¹⁹ This decision was affirmed by the Fifth Circuit, ²⁰ and the Supreme Court granted certiorari. ²¹ Dobbs presented a headlong challenge to Roe and Casey; Mississippi argued not that its statute satisfied the requirements of those cases, but that they were wrongly decided, and that the Court should abandon its prior precedent and judge state abortion laws on a rational review basis, rather than the strict scrutiny applicable to laws infringing fundamental rights. ²²

The Dobbs majority analyzes the “right to abortion” ²³ as an element of the liberty interest protected by the 14^th Amendment to the US Constitution. ²⁴ The Court articulates a two-part test for this liberty analysis. First, we are told, we should ask whether the right in question is one which is articulated in the first eight amendments to the Constitution, or whether it is an unenumerated, but nonetheless fundamental, right. ²⁵ Second, we must inquire whether “the right is ‘deeply rooted in [our] history and tradition,’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” ²⁶ This second prong, then, requires “a careful analysis of the history of the right at issue.” ²⁷ Purporting to engage in such a careful historical analysis, ²⁸ the Court in fifteen pages concludes that there was no history of a right to abortion at “the time of the adoption of the Fourteenth Amendment.” ²⁹ The majority bolsters its historical argument with an Appendix showing “statutes criminalizing abortion at all stages of pregnancy in the States existing in 1868.” ³⁰

Although Dobbs only expressly overturned Roe and Casey, ³¹ the general critique of Roe expressed in Dobbs can be extended to other contemporaneous precedent. The Roberts Court has shown itself to be less bound by stare decisis than past Courts have been, ³² and there is good reason to believe that the historic “originalist” analysis adopted in Dobbs and in other current cases will be applied equally to other past precedent the Court might be asked to reconsider. ³³

III. O’Connor v. Donaldson and Constitutional Civil Commitment Law

In 1971, involuntarily institutionalized mental patient Kenneth Donaldson sued the hospital where he was confined and sued his treating physicians, claiming that his confinement did not meet minimum constitutional standards. ³⁴ Donaldson had been committed to the institution by his family ³⁵ in 1957, and confined ever since, despite numerous requests for release. ³⁶ After a jury verdict in Donaldson’s favor, The Fifth Circuit ³⁷ agreed that Donaldson’s constitutional rights had been violated by his continued commitment, and the Supreme Court granted certiorati. ³⁸ In a limited opinion, the Court held that the state “cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom[.]” ³⁹ The opinion in O’Connor is widely regarded as a foundation of modern civil commitment law. ⁴⁰

IV. Post-Dobbs Commentary and Criticism

Dobbs has been met with a wave of critical responses from the legal academy, the medical establishment, and the popular press. Critics of the decision note that the Court in Dobbs has for the first timediminished, rather than expanded, constitutional rights. ⁴¹ They write of the negative public health effects of abortion restrictions, even pre-Dobbs, ⁴² and predicted that Dobbs’ endorsement of further state-level restrictions will lead to worsened maternal and fetal health outcomes, especially among people of color and other marginalized groups. ⁴³ Some note the contrast between the Dobbs decision and the public positions on Roe taken by recently-confirmed Justices, ⁴⁴ claiming or implying that these Justices were less than truthful in their confirmation hearings, ⁴⁵ and have raised concerns about the effect of this and other recent decisions on the legitimacy of and trust in the Court as an institution. ⁴⁶ There has been extensive criticism of the historical methodology used by the Court in making its determination that the right to abortion is not “deeply rooted in our history and tradition.” ⁴⁷ Others have called for reform of the Supreme Court to increase the number of Justices and make the Court reflect the size of the federal judiciary. ⁴⁸

In contrast, Dobbs has been embraced by the pro-life movement. ⁴⁹ Many states with conservative legislatures have either welcomed the enforceability of existing state laws restricting or banning abortions or introduced new bills restricting abortion. ⁵⁰ Dobbs is consistent with the new originalist direction the conservative supermajority on the Roberts Court appears to be taking in Constitutional interpretation, ⁵¹ and, given the ages of the recently appointed conservative justices, ⁵² appears to be unassailable in the near future.

A common thread in the post-Dobbs critical commentary—and indeed in Dobbs itself—is the scope of the decision. Is the approach and holding of Dobbs limited to its narrow set of facts on abortion, or does it augur a sea change in the approach the Court is taking to a range of issues involving personal autonomy? ⁵³ Opinions on this differ widely even on the Court itself. The majority opinion in Dobbs takes the narrow position, attempting to assure the reader that Dobbs is only applicable to the right to an abortion established in Roe and reaffirmed in Casey; ⁵⁴ that only those decisions are overturned by Dobbs, ⁵⁵ and that other established Supreme Court precedent is unaffected. ⁵⁶ These assurances, however, are of limited value. They are convincingly rebutted by the dissenting opinion, ⁵⁷ which argues that there is nothing in the logic of the majority opinion which limits it to the right to an abortion, ⁵⁸ and that if the majority are serious about their analytical approach to similar precedent under the 14^th Amendment, then those cases too are at risk of being overturned. ⁵⁹

Alongside the dissenting opinion, Justice Thomas’ concurring opinion in Dobbs ⁶⁰ undermines the assurances of the majority as to Dobbs’ limitations. Justice Thomas, while concurring in the elimination of the constitutional right to abortion and agreeing that Dobbs itself only overrules Roe and Casey, ⁶¹ explicitly invites constitutional challenges to a range of other rights previously established by the Court under the 14^th Amendment. ⁶² Thomas’s opinion expressly calls for the reconsideration of the rights to use contraception (Griswold v. Connecticut ⁶³ ), right to engage in consensual sexual acts (Lawrence v. Texas ⁶⁴ ) and the right to marriage equality (Obergefell v. Hodges ⁶⁵ ). ⁶⁶

In addition to the Dobbs opinions themselves, a host of commentary since the opinions were handed down has raised the question of how far the Roberts court is willing to go in reconsidering 14^th Amendment jurisprudence. Most of the commentary, like the opinions themselves, discusses the potential effects of Dobbs on other rights having to do with reproductive and sexual freedoms, including contraception, ⁶⁷ same-sex marriage, ⁶⁸ interracial marriage, ⁶⁹ and others. However, there is nothing in the Dobbs opinion or the Roberts Court’s new analytical approach which necessarily limits it to these social or “culture war” issues. This Court’s approach could likely reshape constitutional thinking on a host of other issues.

An example of this is the Court’s recent decision in New York State Rifle and Pistol Assoc. v. Bruen, ⁷⁰ a Second Amendment case decided one day before Dobbs. In Bruen, petitioners challenged a New York statute requiring an applicant for a license to carry a firearm in public to show a “special need for self-protection distinguishable from that of the general community.” ⁷¹ The Court, in a six-three split virtually identical to that in Dobbs, ⁷² held that the New York statute violated the Second and Fourteenth Amendments by imposing a heightened requirement on applicants above and beyond the ordinary self-defense needs of citizens. ⁷³ In doing so, the Court applied a historically oriented test to the New York statute, rejecting prior precedent requiring means-end testing of modern firearms regulation to determine its constitutionality. ⁷⁴ As in Dobbs, the Bruen Court engaged in extensive historical analysis of the regulation of firearms at the time of the adoption of the Fourteenth Amendment; ⁷⁵ similar to the Dobbs court’s focus on what it considered the overwhelming evidence of the illegality of abortion during the same historical period. ⁷⁶

Since Bruen, lower federal courts have seized on this historical analysis to issue decision which, if upheld, greatly constrain virtually all regulation of firearms, ⁷⁷ such as cases from Texas invalidating laws preventing indicted but not convicted individuals from possessing firearms ⁷⁸ and preventing individuals with active restraining orders against them from possessing firearms. ⁷⁹ In both cases, the judge found that, because no sufficiently similar regulation of firearms existed at the time the Fourteenth Amendment was adopted, ⁸⁰ the modern regulation could not pass constitutional muster. ⁸¹ The Court thus, in both modern lines of cases, rejects an analysis which balances the needs of modern society with the text of the Constitution, in favor of a much more limited inquiry into historic statutes and regulations.

V. Dobbs as applied to O’Connor and civil commitment

There are a number of similarities between Roe and Casey, on the one hand, and O’Connor on the other, which suggest that the Roberts Court, if asked to do so, might take a similar stance on the right to avoid civil commitment that it took with respect to abortion. The O’Connor and Roe decisions are separated from each other in time by only two years, and both are the products of the same Supreme Court. There were no Supreme Court appointments between January 1972—when Justices William Rehnquist and Lewis Powell were sworn in—and December 1975, when Justice John Paul Stevens was sworn in. ⁸²

Additionally, the cases of Roe and O’Connor are both Burger Court cases, ⁸³ and share a similar approach to 14^th Amendment analysis. O’Connor grounds its analysis of the right to avoid civil commitment in the liberty interest protected by the 14^th Amendment, but unsurprisingly engages in no historical analysis of whether such a right is “deeply rooted” in the national traditions, nor of whether such a right existed at the time of the adoption of the 14^th Amendment. The Dobbs majority referred to the Roe opinion’s 14^th Amendment analysis as “remarkably loose,” ⁸⁴ and there is no indication that it would see the O’Connor court’s treatment of the Constitutional text as superior. Second, there was no consensus that there was a robust right to avoid civil commitment, either at English common law at the time of the founding, in the writings of the early American legal thinkers cited favorably by the Court in Dobbs and other recent cases, or at the time of the adoption and ratification of the 14^th Amendment in 1868.

The first asylum for the confinement of the mentally ill in the American colonies was constructed in Virginia in 1773, virtually contemporaneously with the American Revolution. ⁸⁵ Although this was progress from the earliest days of the colonies, in which the Puritanical authorities often saw mental illness as evidence of demonic possession, ⁸⁶ in fact in the eighteenth century “[p]atients were committed to the hospital with an amazing ease and informality[.]” ⁸⁷ Into the later years of the century, the mentally ill were treated as public spectacle, with mental institutions charging admission to the public to view and interact with patients. ⁸⁸ From the beginning of these institutions, involuntary commitment was viewed as a necessary and positive way to ensure the mentally ill received treatment. Benjamin Franklin was one of the founders of Pennsylvania’s first mental institution, of which he wrote “few or none of [the mentally ill] are so sensible of their Condition, as to submit voluntarily to the treatments that their respective Cases require … whereas it has been found … that above two Thirds of the Mad People received into Bethlehem Hospital, and there treated properly, have been cured.” ⁸⁹ Of course, with the limited understanding of mental illness of the day, there was in fact little if anything of “treatment” provided in these colonial institutions. Nonetheless, individuals were committed to them with no thought to their individual interest in “liberty,” and very little due process as we understand it today.

VI. Past Abuses of Psychiatry – A Cautionary Tale

Although we think of state misuse of mental health and psychiatry as a vestige of authoritarian regimes, ⁹⁰ there is unfortunately a robust American history of such abuses as well, typically focused on marginalized groups and populations acting outside of societal norms, including but not limited to women, enslaved people, and the LGBTQ+ community.

Hysteria as applied to women

Hysteria has been described as “the first mental disorder attributable to women,” ⁹¹ and has existed as a diagnosable disease for four millennia. ⁹² This diagnosis was used to justify the inferior status of women at law for decades, and still has echoes in today’s politics when women are described as “too emotional” for leadership positions. ⁹³

Drapetomania and the medicalization of enslaved people’s desire for freedom

In the nineteenth century, slave owners in need of an explanation for enslaved people’s desire for freedom found medical justification in the “diagnosis” of drapetomania, a word coined to literally refer to the desire for freedom and likelihood of trying to escape enslavement. ⁹⁴

Pathologizing homosexuality and gender nonconformity

More recently, homosexuality was considered a diagnosable mental disorder in the Diagnostic and Statistical Manual until, and a cottage industry of “treatments” developed to try to “cure” same-sex attraction. ⁹⁵

VII. Modern Examples of Attempts to Expand Civil Commitment Beyond Current Constitutional Boundaries

The Roberts Court’s new focus on the search for historical foundations for the “liberty” interests protected by the Fourteenth Amendment, ⁹⁶ to say nothing of Justice Thomas’s continued determination to eliminate the protections of substantive due process altogether, ⁹⁷ provide a fertile ground for those who would expand the power of the state to incarcerate individuals outside of the protections of the criminal justice system. This Article predicts that we will see a wave of such attempts to expand the power of the state to use civil commitment against marginalized populations, and that eventually, those seeking that expansion of power will use the door that has been opened by the decision in Dobbs and other recent 14^th Amendment cases to justify those powers, even in the absence of the showings of mental illness and dangerousness to self or others that have been required since O’Connor. This section briefly outlines only a few examples of modern incarceration that might well end up in a direct challenge to the limitations of O’Connor and its progeny.

Incarceration of the unhoused

Criminalization of homelessness has a long and unfortunate history in this country, with the most recent example coming from the home city of this Article’s author. ⁹⁸ Most attempts to criminalize homelessness have been declared unconstitutional in the past. ⁹⁹ However, New York City, under the leadership of Mayor Eric Adams, recently announced an initiative to hospitalize unhoused individuals “even when no recent dangerous act has been observed.” ¹⁰⁰ This new approach violates the common understanding of the “dangerousness” requirement that the individual being deprived of their liberty pose an imminent threat to themselves or others, ¹⁰¹ not merely a theoretical or possible threat based on their housing status. New York City’s Mayor Adams addressed this disconnect between existing law and his program, stating that “[t]he common misunderstanding persists that we cannot provide involuntary assistance unless the person is violent. … Going forward we will make every effort to assist those who are suffering from mental illness.” ¹⁰² Two things about this statement are worth highlighting. First, it is couched in the language of treatment and assistance to the mentally ill. This is characteristic of pro-involuntary commitment advocates, and shows the tension between providing treatment and protecting civil liberties. ¹⁰³ Second, it shows that Mayor Adams intends to try to lower the legal threshold for the deprivation of liberty of those who are mentally ill and unhoused. [describe NY law here]. It is clear that we are seeing a push to swing the pendulum back in the direction of paternalism and forced treatment for the good of the mentally ill individual, regardless of their expressed desires, which was expressly rejected by the Court in O’Connor.

Incarceration of pregnant people for the protection of the fetus

Shortly after the Dobbs decision, national news reported on cases in Alabama where pregnant individuals being incarcerated for the purpose of protection of the fetuses they carried from perceived potential harms due to their conduct. ¹⁰⁴ While this incarceration is not technically civil commitment—the individuals kept in jail had been arrested for possession of cannabis, which is illegal under Alabama law ¹⁰⁵—the rationales for the incarceration parallel those of civil commitment. According to the reporting, pregnant individuals were treated differently from non-pregnant individuals arrested for the same offense: they were not allowed to post bail and be released, on the grounds that if they continued cannabis usage, it would harm the fetuses they carried. ¹⁰⁶ Thus, these individuals remained in jail, or involuntarily in a drug rehabilitation facility, ¹⁰⁷ for months (ironically creating other dangers to them or their fetuses). ¹⁰⁸

The trend of criminalizing pregnant individuals on the pretext of protection of fetuses parallels the increase in attempts to civilly commit the unhoused, in that it elevates the purported need for care or treatment over the protection of the civil liberties of the individual. In another way, the trend is distinct: it focuses on the “danger” prong of the traditional civil commitment standard, rather than on the “mental illness” prong. Indeed, some of the pregnant individuals sought to be sent to treatment facilities by the authorities in Alabama were turned away by those facilities because they were not in need of inpatient drug treatment. ¹⁰⁹ Nonetheless, they were kept in confinement because the state deemed its need to protect these women’s fetuses as stronger their own liberty interests. ¹¹⁰

As of this writing, the Alabama policy of incarceration of pregnant individuals has been abandoned after national reporting and outcry. ¹¹¹ However, this Article predicts that, as with the New York policy regarding the unhoused, zealous prosecutors and politicians eager to establish a pro-life reputation with the electorate will not stop at this one instance, and we will see more attempts to elevate supposed dangers to the fetus from maternal behaviors to a valid rationale for civil commitment. In light of post-Dobbs questions about the rights of pregnant individuals to travel interstate to obtain reproductive health care services, ¹¹² it is not out of the realm of possibility to imagine a zealous prosecutor attempting to take the “health of the fetus” argument one step further and using incarceration or civil commitment as a device to prevent interstate travel.

Attacks on LGBTQ+ Populations

The final section of this Article—admittedly more speculative than the others—in some ways represents a natural conclusion to current trends in extreme right-wing rhetoric. Recent years have seen an alarming increase in anti-LGBTQ+ rhetoric from the extreme right wing of American politics, ¹¹³ driven in part by Q-anon inspired conspiracy theorists, ¹¹⁴ but increasingly echoed by more mainstream news outlets, ¹¹⁵ political candidates ¹¹⁶ and office holders. ¹¹⁷ This rhetoric, ostensibly a backlash to the achievement of marriage equality after Obergefell v. Hodges, ¹¹⁸ attempts to cast LGBTQ+ individuals, especially but not limited to transgender and gender non-conforming individuals, as a threat to children. ¹¹⁹ Examples of this type of rhetoric are condemnations of “drag queen story hour” events at public libraries and other venues, ¹²⁰ descriptions of LGBTQ+ individuals as “groomers,” ¹²¹ and other attacks implying a nonexistent link between LGBTQ+ status, gender nonconformity, and sexual abuse of children. ¹²²

Such rhetoric has resulted in multiple policy proposals at the state level in states with conservative-controlled legislatures, ¹²³ including so-called “bathroom bills,” ¹²⁴ bans on participation in sports by gender-nonconforming individuals, ¹²⁵ legislative bans on “drag queen story hours,” ¹²⁶ and others. Although there have been no reports of states attempting to use civil commitment to isolate LGBTQ+ or other gender nonconforming individuals from society to date, some cautionary points are worth making. First, recall how recently homosexuality was considered a mental illness by the medical community. ¹²⁷ Second, in many locations, LGBTQ+ individuals still do not have basic legal protections against discrimination. ¹²⁸ Finally, in an atmosphere of increasing fear and intolerance, it is not difficult to imagine an overzealous elected official or prosecutor attempting to weaponize these diagnostic and therapeutic tools against the LGBTQ+ community, using rhetoric of “need for treatment” similar to that we see used in the attempts to hospitalize the unhoused and pregnant. If the courts, following Dobbs’s lead, weaken the substantive protections against misuse of civil commitment, attempts to civilly commit LGBTQ+ individuals could become possible, perhaps building on the relatively recent proliferation of so-called “sexually violent predator” laws. ¹²⁹

Increased Civil Commitment of the Mentally Ill

The previous sections of this Article outline the outer limits of potential misuse of civil commitment proceedings in the wake of Dobbs, but it is important to realize that, even if these scenarios do not in fact come to pass, Dobbs still potentially augurs an expansion of civil commitment of the mentally ill. As with the expansions of civil commitment into the homeless population described above, ¹³⁰ involuntary hospitalization may be perceived as an “easy fix” for the problem of inadequate mental health treatment in this country. This risks a return to the paternalism of the early decades of the twentieth century, before O’Connor and its progeny helped reduce the number of inpatient hospitalizations for mental illness. Although the funding for community mental health that was promised alongside the deinstitutionalization campaigns of the late twentieth century never materialized, ¹³¹ this is no justification for swinging the pendulum too far back in the direction of paternalist interventions.

Although some of the recent attempted expansions of civil commitment arise out of right-wing rhetoric, ¹³² it is a mistake to think of this as a solely right-wing phenomenon. We are seeing a rise in commitment of the mentally ill homeless, for example, in traditionally “blue” states such as California and New York. ¹³³ Rather, what we are seeing is a swing of the pendulum between our concept of civil commitment as a treatment/law and order issue and civil commitment as a. civil rights issue. ¹³⁴ This tension has been present for centuries, but the Roberts Court has provided an opening for advocates of increased detention of the mentally ill, and officials across the country are stepping up to seize that opportunity. We will see court challenges to the New York and California initiatives to civilly commit the unhoused, and advocates will use the Dobbs framework to argue that the O’Connor civil commitment standard is no longer a limiting factor.

Potential Solutions

Although many of the potential overreaching applications of civil commitment laws outlined in this Article are speculative as of this writing, in light of the potential broad reach of the new constitutional approach of Dobbs and other recent Roberts Court cases, it is important to imagine what a response seeking to limit such overreach and protect the liberty interests of those potentially subject to civil commitment proceedings. This section briefly sketches a number of such potential protections.

Legislative

As with other rights rolled back or imperiled by the Roberts Court, Congress or state legislatures can consider and pass legislation enshrining in law the right against civil commitment absent the circumstances discussed in O’Connor. While such statutes would not have the force of Constitutional rights and might lead to a patchwork of state-by-state variation in individual rights, they would be one path to at least partially protecting the civil rights of those potentially subject to civil commitment law. In the face of the threat of a rollback of the right to marriage equality established in Obergefell, Congress passed, and President Biden signed, the bipartisan Respect for Marriage Act. ¹³⁵ This Act, while not establishing a national right to marriage equality, does at least partially protect marriages by repealing the Defense of Marriage Act ¹³⁶ and by requiring states to recognize out of state marriages that were legal where performed. ¹³⁷ Similarly, after the Dobbs opinion, Congress has begun to consider legislation creating a national right to reproductive health services. ¹³⁸ While such legislation has not passed yet, and may be imperiled in the Republican-controlled House of Representatives in 2023, the speed with which Congress has responded to these two issues shows the strength of public opinion on these issues. ¹³⁹ Congress could also take up legislation creating national standards for civil commitment if it is believed that the standards set by O’Connor and its progeny are imperiled by the Roberts Court.

Litigation

While the Dobbs decision forecloses one path for litigating reproductive rights, the battle has shifted post-Dobbs to the state court level, with reproductive rights advocates arguing for state Constitutional protections for abortion access. ¹⁴⁰ Further, the support for civil rights at the state level appears to be strong, as evidenced by the results of a Kansas ballot initiative seeking to amend the state constitution to provide that it could not be interpreted to protect abortion rights. ¹⁴¹ Although Kansas has been a conservative state for years, the ballot measure failed resoundingly at the polls. ¹⁴² Similarly, a ballot measure designed to prevent a state supreme court from protecting reproductive rights failed in Kentucky, another conservative state, in the November 2022 election. ¹⁴³

Court Changes

In the wake of the nomination and approval of Justice Amy Coney Barrett, ¹⁴⁴ Democratic frustration with the Supreme Court’s direction reached a zenith. Frustrated at Republicans’ successful blocking of a Supreme Court nominee in the waning months of the Obama administration, ¹⁴⁵ on the theory that Court appointments so late in a presidency should be put on hold pending the results of the next presidential election; and Republicans’ reversal of this position to seat Barrett with mere weeks remaining in the Trump presidency, ¹⁴⁶ several Democratic politicians and organizations floated the possibility of major reform of the Supreme Court ¹⁴⁷ in order to prevent, or at least minimize the impact of, such gamesmanship in the future.

Although such rhetoric played a role in the politics of the 2020 Presidential election cycle, the Democratic nominee and eventual winner Joe Biden did not support any of the proposed changes to the Court (while decrying the gamesmanship that denied his predecessor President Obama the opportunity to name Justice Ginburg’s successor on the Court). No such proposals have gained any serious headway after the 2020 election. It seems highly unlikely, therefore, that any such proposals will be seriously entertained in the 118th Congress, where control will be divided between Republican and Democratic chambers.

Improved Mental Health Treatment Funding

Finally, although not directly related to the standards for civil commitment, it must be said that improvement of the funding for and delivery of mental health services in this country would go a long way towards minimizing the need for civil commitment. Ease of access to mental health services would enable earlier intervention and treatment, before mental illness progresses to a point where involuntary commitment is needed. Although this would not entirely eliminate the need for civil commitment procedures, policymakers should prioritize improvement of the American mental health delivery system at every opportunity.

VIII. Conclusion

We find ourselves at the beginning of a new era in constitutional jurisprudence. Cases like Dobbs, Bruen, and others, with their diminished deference to the principle of stare decisis and willingness to reshape the contours of long-established rights, demand that we look forward to determine the potential limits and parameters of these new approaches. When we combine the Roberts Court’s determinedly historic approach to defining the contours of modern rights with other present-day phenomena such as the expansion of homelessness, continued anti-abortion rhetoric and increased backlash against the LGBTQ+ population, it follows that there is a substantial chance that civil commitment will be a tool increasingly turned to by authorities and policymakers. The historic balance in civil commitment law between paternalism and civil liberties is likely to be fundamentally reshaped by these forces. This essay has sketched one potential path that such a reshaping may take. Further attention and research should be devoted to an in-depth review of the history of mental health treatment and mental illness itself, to try to head off the sort of ill-informed “historic” analysis that characterizes some of the current Court’s opinions. ¹⁴⁸ However, if critics are correct that this Court is more interested in culture war victories than in establishment of workable governance and sustainable balancing of competing interests, ¹⁴⁹ then even those efforts may be unavailing.