Harvard law professor Stephen Sachs, who is one of my favorite legal academics, has written an excellent law-review article (“Dobbs and the Originalists”) that defends Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization as an originalist triumph.
Sachs directs his arguments against two distinct sets of critics: originalists who complain that Alito’s opinion was not purely originalist, and critics of originalism who contend that Alito’s opinion got its history wrong.
As to the first set of critics: Sachs invokes the “principle of party presentation” to justify the Dobbs majority’s deciding the case within the bounds of the parties’ arguments—applying, for example, Glucksberg’s history-and-tradition test and not revisiting other individual-autonomy cases. His bottom line:
[Dobbs] was an originalism-compatible opinion, the kind a faithful originalist could write. Indeed, it appears to have been an originalism-compliant opinion, the kind a faithful originalist should write, reaching the right originalist result for what were essentially the right originalist reasons. [His italics.]
Sachs is much more damning of the second set of critics, those who dispute Alito’s count of the number of states that barred abortion before quickening at the time the Fourteenth Amendment was adopted. What is “quite astonishing in their form of argument” is that they don’t offer a “coherent explanation of why any of this quickening business matters”:
If chewing gum wasn’t prohibited in most states prior to 1868, that doesn’t show that a right to chew gum was deeply rooted in this Nation’s history and tradition, much less that chewing gum was a fundamental right of citizenship at general law. It just shows that most states chose not to prohibit it at the time. Likewise, burglary was at common law restricted to intrusions at night, but daytime burgling wasn’t seen to be a privilege of American citizenship.
In identifying these privileges, what matters isn’t just whether states did ban chewing gum or daytime burglaries, but whether the American legal system thought they could….
On this score, the evidence on abortion is so lopsided as to make the current scholarly debate seem perverse. If the early-nineteenth-century statutes [barring abortion from conception] really infringed a “legally determinate right,” … one might expect these statutes to have provoked serious constitutional objections in the states. Yet courts applying the common-law quickening rule noted that statutes could override it, and courts applying these statutes raised no constitutional objections to their doing so. [His italics.]
As I put it nearly three years ago when I ran across law professor Aaron Tang’s elementary confusion on this matter:
To state the matter most simply, the originalist proposition that the states have the authority to prohibit elective abortion [from conception] does not depend at all on whether 27 or 17 or seven states prohibited abortion from conception at the time the 14th Amendment was enacted. Under standard originalist methodology, any of those counts would place on proponents of a constitutional right to abortion a very high burden of demonstrating that the original public meaning of the 14th Amendment somehow disallowed those state laws….
What’s more, if the 14th Amendment somehow protected a constitutional right to abortion before quickening, you’d expect that the states that had pre-quickening bans would, immediately after ratification, eliminate those bans. Instead, the trend was in the opposite direction: States that had in place the common-law ban on abortion post-quickening enacted statutes that barred abortion from conception.
Sachs repeatedly cites Tang’s confusions in his footnotes. But he puts in the body of his article one devastating takedown of Tang. In his Dobbs opinion, Alito observed that abortion supporters had “found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise.” Tang, Sachs notes,
described [Alito’s] claim as “historically debatable,” offering two counterexamples from 1854: a pseudonymous writer who argued that abortion was wrong but ought to be lawful nonetheless, and a couple whose article in a self-published journal urged that “every woman has the inherent and inalienable right to choose,” and that “any law, or constitution that denies, or violates this right, is a despotism and an outrage.” The latter is the sort of sentiment we’d need to see in the historical record, preferably from authors whom contemporaries saw as having real legal expertise. So the fact that it was delivered in the course of condemning “the perjury and slavery of marriage,” by a pair of water-cure enthusiasts living in a free-love anarchist utopian community on Long Island, diminishes its force as evidence of a “real public dialogue advocating a woman’s right to choose”—let alone evidence of this right’s having already been the law. [Emphasis added.]
Ramesh Ponnuru has aptly labeled Tang “a font of misinformation about the history of abortion law.” As I’ve noted before, the shoddy quality of Tang’s scholarship somehow didn’t deter the editors of the Stanford Law Review and the Yale Law Journal from publishing his confusions.