In Support of Dobbs
The hope was that the Dobbs opinion would finally represent an end to the contentious politics of abortion. Rather, it has signaled the beginning of a new and likely much more intense phase of bitter controversy. While Justice Samuel Alito may hope that Dobbs will lower the temperature of the issue by removing it from the control of the federal judiciary and placing it with the political branches in the 50 states, the likelihood is that the issue will now heat up in several ways. The centripetal forces of American politics are likely to see the issue front and center again in Washington DC, and the Supreme Court may well be dragged back into to fray whether it wants to or not. Rather than defusing the issue, we may be on cusp of a “big bang” in abortion politics.
The question in Dobbs was whether Mississippi could ban all abortions after 15 weeks of pregnancy. Under Roe, as reaffirmed in Casey v. Planned Parenthood (1992), the Court generally had allowed states to regulate abortions, so long as they did not place an “undue burden” on a woman’s right to choose (though the Court failed to clearly define “undue burden”). But before viability, which occurs at about 22–23 weeks of pregnancy, the Court has held that the Constitution’s due-process clause protects a virtually unrestricted right to an abortion. The Dobbs opinion overturned Roe and placed abortion policy back into the hands of the states.
The Dobbs decision does not innovate. It merely restates the main line of argument developed over decades by conservative jurists, led by Justice Scalia and Judge Robert Bork. The Constitution creates a governing system that privileges positive law — law made by legislatures, executives and agencies, and constitutional conventions — rather than unwritten rights provided by sources external to the written text. The Scalia/Bork approach takes the Constitution as neutral on most moral questions and favors judicial restraint so that Americans acting through their legislatures can provide the answers.
Dobbs’ critics accuse the reported majority of radicalism. But the opinion rejects Roe on the same grounds raised by distinguished liberal scholars. John Hart Ely of Harvard Law School, one of the most influential constitutional scholars of the late 20th Century, called Roe “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Laurence Tribe, another of America’s most important constitutional law thinkers, observed, “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Scholars criticized Roe and its progeny because abortion does not appear anywhere in the constitutional text. For Roe to assert that a right to abortion lurks in the phrase “nor shall any State deprive any person of life, liberty or property, without due process of law,” twists words beyond their meaning. Even if abortion rests within the understanding of “liberty,” the Fourteenth Amendment allows states to deprive “persons” of it so long as they receive fair process. To believe in “substantive” due process, as some scholars, judges, and lawyers do, means entertaining two contradictory characteristics for the same thing, such as dry water or dark light.
Justice Samuel Alito’s majority opinion in Dobbs proceeds beyond this basic argument to reject any idea that precedent, history, or tradition would allow abortion to join a list of other rights not enumerated in the text, but nonetheless are so “fundamental” as to deserve constitutional protection. The 20th Century Supreme Court, for example, held that the Fourteenth Amendment “incorporated” most of the Bill of Rights against the states. The Court has also added a few rights to this list because they are “deeply rooted in history and tradition” and essential to our “scheme of ordered liberty.” In holding that Americans have an individual right to possess firearms, for example, the Court (Justice Scalia writing for the majority) found that a large majority of states that had ratified the Fourteenth Amendment in 1866 also had laws protecting the right to keep and bear arms.
History, however, also explains why the Justices have refused other rights entry into the constitutional canon. In Washington v. Glucksberg, the Rehnquist Court held that euthanasia did not count as a “liberty interest” protected by the Fourteenth Amendment because it was not “objectively, deeply rooted in the Nation’s history and tradition.” A similar analysis has turned aside efforts to limit or end the death penalty. Justice Alito carefully explained in Dobbs why this same logic requires the Court to reject a constitutional right to abortion. Before, after, and at the time of the ratification of the Fourteenth Amendment, Anglo-American law treated abortion as criminal. If the framers and ratifiers of the Fourteenth Amendment had understood it to protect abortion, Dobbs reasoned, the historical record should have shown states at the time treating it as a constitutional right of some kind. But, according to the Court, there is no evidence of such an understanding. “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Justice Alito concludes. “Zero. None.”
Finally, there is one aspect of Justice Alito’s opinion that has so far drawn little comment. He wrote that the Supreme Court should get out of the “rights-creation” business except when rights are rooted in long-established historical tradition. This was the concern of one of abortion’s great defenders, Justice Ruth Bader Ginsburg, who observed that Roe had short-circuited the broad acceptance of abortion rights through the political process. In 1992, before she joined the Court, she argued that Roe had “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.” If Dobbs restores the political process’s control over unenumerated rights, it will complicate and perhaps foreclose both liberals and conservatives who advocate “judicial engagement,” which is a byword for “judicial activism.” But conservatives can’t have it both ways. If they think abortion should be subject to legislative deliberation, they have to admit that other areas of contentious public policy should as well.