What the Dobbs Draft Opinion Doesn’t Do

Editor’s note: This is the third in a series of articles on the leaked Dobbs draft opinion and its implications.

J ustice Samuel Alito’s leaked draft opinion in Dobbs has come under withering criticism from supporters of a right to an abortion. The main line of attack claims that Dobbs introduces a radical approach to constitutional rights that would eventually doom gay marriage, contraceptives, interracial marriage, and even parental control over children. But these criticisms rest on a progressive understanding of the Constitution that has come loose from any objective moorings in the document’s text, structure, and history. Dobbs easily parries the progressive thrust, but it remains a modest opinion in that it advances no alternative theory of rights, of which conservatives are sorely in need.

Critics of Dobbs accuse the reported majority of radicalism. The draft does reject Roe, but for reasons that distinguished liberal scholars (as we explained in the first article in this series) have shared. 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 one argues that abortion rests within the understanding of “liberty,” the 14th Amendment allows states to deprive “persons” of it so long as they receive due process. To believe in “substantive” due process, as liberal scholars and judges do, is to entertain an irreconcilable contradiction, akin to dry water or dark light.

Justice Alito’s draft goes further to reject any idea that precedent, history, or tradition would allow abortion to join a list of other rights that, though not enumerated in the text, are nonetheless so “fundamental” as to deserve constitutional protection. During the 20th century, the Supreme Court, for example, held that the 14th Amendment “incorporated” most of the Bill of Rights (which textually applies only to the federal government) to apply to the states. To this list the Court has added a few rights on the grounds that 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 14th 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 14th 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 even end the death penalty. Justice Alito carefully explains 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 14th Amendment, Anglo-American law treated abortion as criminal. “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.”

Liberal critics pounce on this historical analysis. They argue that the same logic would also reject a right to interracial marriage, gay marriage, and intimate relations, which all fall under a larger right to “privacy” that goes unmentioned in the Constitution but has long received judicial protection. “The thrust of the decision and the dramatic and radical approach it takes to interpreting the Constitution’s unenumerated rights, narrowly and stingily, will not depend on the tone,” said Harvard law professor Laurence Tribe. “The opinion, whether it’s delivered in a velvet glove or not, is going to be an iron fist. The court is really announcing that it’s laying down the gauntlet with respect to rights like those recognized in Lawrence v. Texas, in terms of sexual intimacy, and Obergefell v. Hodges, in terms of the right to marry.”

Tribe has a point. If the Court were to address all claims of unenumerated rights by asking (a) whether the constitutional text grants the right, and, if not, (b) whether history and tradition support such a right, the case for gay marriage or certain sexual practices begins to crumble. Alito’s draft distinguishes these cases on something like John Stuart Mill’s harm principle: that individuals should have the liberty to act, unless they harm third parties. The Dobbs draft argues that the right to marry (including the right to same-sex marriage), use contraceptives, engage in sexual practices, and raise children do not harm others. “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey relied,” Alito says, is that “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.’” There is no wide consensus that abortion is an individual right; to the contrary, Alito observes, states had long regulated abortion, and even after Roe states continued to challenge whether the right exists.

Letting Politics Decide

Alito’s promise not to touch gay marriage or contraception, however, has the flavor of an ipse dixit — he won’t because he says he won’t. The draft opinion does not advance a theory of the Constitution to explain why the Court must strike down Roe but leave these other unenumerated rights intact. In this respect, the Dobbs draft — despite the claims of Tribe and other liberal commentators — actually adopts a relatively modest stance. At its core, it makes a claim not about individual rights so much as about the political process. It says that the Constitution does not take a position on most questions concerning freedom and liberty beyond those in the plain text of the Bill of Rights and the Reconstruction Amendments. Instead, the Constitution leaves those issues up to the states, where voters can decide. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito writes. He then quotes Justice Scalia’s dissent in Casey, which made the strongest case for letting politics decide: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

The Dobbs draft does not innovate. It merely restates the main line of argument developed over decades by conservative jurists, led by Scalia and Judge Robert Bork. The Constitution creates a governing system that privileges positive law — that law made by legislatures, executives and agencies, and constitutional conventions — rather than unwritten, natural law 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 give the answers.

This positivist approach puts the majority in the difficult position of explaining why voters should decide the question of abortion but not questions of gay marriage or sexual privacy, as both lack a foundation in the constitutional text and had historically been regulated or widely banned. It is here that Dobbs could have gone further to preserve some scope for unenumerated individual rights while rejecting abortion. One promising path would have relocated such freedoms from the internal contradictions of substantive due process to the clause just before the due-process clause in the 14th Amendment, which declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the United States.” If there is any constitutional provision that appears to protect unenumerated rights, it is the privileges-or-immunities clause. Note how its language adopts that of the First Amendment, which declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Abolitionist thinkers who came to power first in the Republican Party and then in the Civil War and Reconstruction Congresses believed that “privileges or immunities” included a series of individual rights, chief among them the right to be free and to keep the fruits of one’s labors. Perhaps the privileges-or-immunities clause similarly protected the 19th-century version of a right to privacy, but one that did not in its exercise harm others. Unfortunately, the Supreme Court turned the clause into a dead letter in the deeply flawed Slaughterhouse Cases in 1873. Justice Clarence Thomas has most powerfully called for the revival of the privileges-or-immunities clause — and, interestingly, as senior justice in the majority, could have kept the Dobbs opinion but apparently assigned it to Alito, which suggests that Thomas might call for a more radical approach based in the clause.

Justice Thomas’s decision, assuming Roberts was not in the majority, to assign the main opinion to Alito may be a classic Holmesian (as in Sherlock, not Oliver Wendell) case of the dog that did not bark. Although Thomas and Alito typically align on the outcome of cases, Thomas’s jurisprudence differs from Alito’s in relevant ways. Beyond Thomas’s expansive views about reviving the privileges-or-immunities clause, he is the one justice who anchors his constitutional analysis in the natural-law tradition as Thomas Aquinas understood it, and in the modern natural-rights tradition best expressed by that other Thomas — Jefferson — in the Declaration of Independence. Justice Thomas, nearly alone among modern justices, often cites the Declaration as an authoritative source of guidance in constitutional analysis. (This was always too much even for the late Justice Scalia, who once wrote dismissively, “If you want aspirations, you can read the Declaration of Independence. . . . There is no such philosophizing in our Constitution.”)

Abortion has always been a profoundly moral issue, which even Justice Blackmun’s incoherent opinion in Roe recognized. By anchoring the reversal of Roe in an analysis that the “right” to abortion cannot be “objectively, deeply rooted in the Nation’s history and tradition,” Alito’s opinion sidesteps the fundamental moral dimension and omits any consideration of whether the Court can or should consider any aspect of natural law (which is also part of our history and tradition, no matter how much law schools may wish to ignore it). Returning the issue to the states for deliberation and persuasion by elected representatives may be good politics — more on this to come in our last installment in this series — and a stable settlement at the Court. But this settlement is unlikely to stick for the long haul.

The pro-life movement has long compared Roe to Dred Scott, and the parallel goes beyond the denial of rights to life and liberty to a certain class of human beings. Determining the law and policy on abortion through majority-rule processes in the states is to embrace willy-nilly Stephen Douglas’s position in the 1850s — that slavery in the territories and new states should be a matter of local popular sovereignty. “I don’t care whether slavery is voted up or down,” Douglas famously said. Like the unborn today, slaves did not get a vote on the question themselves. Lincoln, ordinarily willing, like most practicing politicians, to compromise on many hard questions, wouldn’t compromise on this point, because “there is no right to do a wrong.”

For pro-lifers it is not necessary to settle on a definitive answer of when human life begins to believe that extending the protection of the law to the unborn is not a matter that should be left up to shifting majority opinion. One can reasonably suppose that Justice Thomas would like to say something along these lines in the Dobbs case, but that he cannot — yet — command five votes on the Court. A Thomas concurrence that makes the natural-law case for going further with our constitutional judgment might be intended to lay down a marker for the future. It would be part of the process of democratic persuasion, akin to Justice John Harlan’s famous dissent in Plessy v. Ferguson, which argued against all racial classifications in our law. The justices may have removed themselves from the issue for the time being, but sooner or later it is likely to be forced upon them again, unless our political branches amend the Constitution to end a political struggle that is bound to persist in perpetuity.

Steven F. Hayward is senior resident scholar at the Institute of Governmental Studies and a lecturer in both the law school and the political science department at the University of California at Berkeley.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.