What follows from overturning Roe v. Wade? Leave that to politics and later cases.
What follows from overturning Roe v. Wade? Leave that to politics and later cases.
T he most criticized portion of Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization is not one of his many arguments for overturning Roe v. Wade but his discussion of why overturning Roe does not require the Court to uproot more of its decisions on unenumerated rights — those not mentioned in the Constitution. This is, in fact, the weakest part of the draft opinion. If Alito can get four other justices to go along, he should be less defensive about the possibility that other constitutional falsehoods might be questioned in later cases. There is no need for the Dobbs majority to tear down other unenumerated rights, but there is also no need for it to construct implausible defenses for them.
Legally, it is telling that the critics have such a weak argument in favor of Roe that they have to deflect to discussing other unenumerated rights. Politically, as Ramesh Ponnuru and others have noted, it is a good sign for the pro-life movement that critics have immediately leapt from attacking the overturning of Roe to warning that the draft will result in worse things. If the defenders of legal abortion felt confident that ending Roe would trigger a massive popular backlash in their favor, they wouldn’t need to argue about same-sex or interracial marriage or sodomy laws or contraception.
Unenumerated rights have been controversial since the Founding. The Constitution was originally written without a Bill of Rights. It was mainly designed to limit the federal government to enumerated powers. The argument against a Bill of Rights was that creating an enumerated list would encourage the federal government to think its powers were limited only by enumerated individual rights — precisely the progressive approach that has dominated too much constitutional thinking since the New Deal.
A broader concern was that people writing down a list would forget something important. That could risk trouble down the road when the government invaded some traditional liberty that nobody had expected to see trampled. After all, nobody would have thought to write the Third Amendment’s ban on quartering troops in private houses if they hadn’t just lived through the British doing that. What if the government decided to regulate or ban something nobody had regulated or banned before?
In order to avoid either outcome, the Bill of Rights included the Ninth and Tenth Amendments. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth reserves to the states whatever powers are not delegated to the federal government. Some originalist scholars argue that the Ninth Amendment doesn’t actually create any judicially enforceable rights; it is just a rule of construction that, together with the Tenth, constrains the federal government to its enumerated powers.
But if the Ninth Amendment creates judicially enforceable rights, the proper originalist standard for recognizing them would look something like the rule the Supreme Court used under the 14th Amendment due-process clause in Washington v. Glucksberg (1997). Glucksberg found that a right to assisted suicide was not “deeply rooted in this Nation’s history and tradition,” and therefore was not “implicit in the concept of ordered liberty” for the people who drafted and ratified the 14th Amendment. Rather, the Glucksberg Court noted that assisted suicide was traditionally banned by American law: There was “a consistent and almost universal tradition that has long rejected the asserted right” — just as was true of abortion before 1973. The Glucksberg standard fulfills the purpose of the Ninth Amendment: to protect against new invasions of traditional rights by the assertion of new powers of government. The opposite approach — creating new rights against traditional powers of government — can be done only by amending the Constitution, not by judicial fiat.
The Court’s 2015 decision in Obergefell v. Hodges treated the Glucksberg standard with hand-waving contempt, offering a made-up-for-the-moment exception:
Glucksberg did insist that liberty under the Due Process Clause must be defined . . . with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy . . .
If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.
This was nonsense. In 1878, the Court in Reynolds v. United States upheld a federal ban on polygamy in the Utah territory on the basis of marriage’s traditions:
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void . . . and from the earliest history of England polygamy has been treated as an offence against society.
Even in Griswold v. Connecticut (1965), the Court grounded the right to marital contraception in the fact that, in addressing marriage, “we deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”
Much of the reason why the Court has veered all over the map without a compass on unenumerated rights is that it has often been working, not with the Ninth Amendment’s rights against the federal government, but with the 14th Amendment’s rights against the states. The Court got the 14th Amendment wrong very early on by eviscerating its privileges-or-immunities and citizenship clauses and instead relying on the weird, oxymoronic concept of “substantive due process” that was invented in the Dred Scott decision in order to fabricate a federal right to take slaves into federal territory. Roe, Obergefell, Griswold, Lawrence v. Texas (striking down sodomy laws), and many other controversial decisions on unenumerated rights come from the Dred Scott conception of substantive due process.
The Court ought to abolish the whole concept of substantive due process, but doing so would not necessarily eliminate all unenumerated rights — not, that is, if we take the Ninth and 14th Amendments seriously. There remains an extensive effort by Justice Clarence Thomas and originalist scholars to reorient the proper basis of rights against the states — both unenumerated rights and enumerated rights incorporated from the federal Bill of Rights — into their correct grounding in the 14th Amendment’s original text and meaning. Doing so would lend more coherence to the Court’s jurisprudence on individual rights. Alito nods to that debate in a footnote but observes that even under the standard Thomas proposes, an unenumerated right “would need to be rooted in the Nation’s history and tradition” to be judicially enforced against the democratically elected branches. Alito therefore proceeds explicitly under the Glucksberg framework.
Deciding how the general standard works in all cases is a large project, and it is asking quite a lot of the Court to tackle that entire topic in one opinion on the hottest of hot-button cases. It is enough for a day’s work to tear down the pyramids of falsehood that sustain Roe and its progeny, and leave the broader task to be developed over time in future cases. Alito should leave it at that.
Where Alito goes astray — perhaps as a sop to one of the other justices he needs to form a majority — is in offering his own attempt to argue that abortion is different from same-sex marriage, contraception, and other unenumerated rights, in much the way that Obergefell argued that marriage is different from assisted suicide:
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” . . .
None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
This is backwards. The reason why there is no constitutional right to abortion is because, as Alito details at length, it is not in the text, is not connected to anything in the text, was widely illegal at the time the 14th Amendment was drafted and ratified, and was not treated as a right or liberty by anybody until a century after that. It is the opposite of a traditional liberty “deeply rooted in this Nation’s history and tradition” until invaded by new government regulation. End of story. All that remains after that is the question whether to overrule a bad precedent, an analysis that Alito performs over 31 pages.
The fact that abortion takes a human life is important, but it matters legally only because it shows that the government has a rational (indeed, compelling) interest in banning it. But it would be replacing one set of falsehoods with another to suggest that there is a lower standard for recognizing unenumerated rights any time the government isn’t literally preventing a homicide.
Will Dobbs, if decided as written by Alito, lead to the reversal of other unenumerated rights recognized in prior cases? Maybe some; probably not most of them. That is firstly a question for the political system, because cases do not reach the Court unless there is a real-world controversy. There is no political constituency anywhere today for banning contraception, criminalizing consensual sodomy, or outlawing interracial marriage — indeed, both Griswold and Lawrence required creativity to get to the Court in the first place because nobody was really enforcing the laws at issue in those cases even then. It is, secondly, a question of whether there is some firmer basis in the Constitution for the unenumerated right. Loving v. Virginia, for example, struck down bans on interracial marriage mainly because racial discrimination flagrantly violates the equal-protection clause; there is zero chance that the Court would conclude otherwise today even if it were asked again. And third, it is a question of stare decisis — the Court may weigh factors such as reliance on past decisions more heavily in the case of people who have already entered same-sex marriages in reliance on Obergefell.
There is no reason why the Dobbs opinion needs to answer all of those questions simultaneously, so long as it follows a standard faithful to the written Constitution. To the extent that Republican politicians feel the need to address other cases to allay public fears, it is not Justice Alito’s job to be their press secretary. He should stick to ensuring that the United States Reports give no aid to falsehoods of fact or law in its pages.