The ‘one-weird-trick’ progressives are back.
Silly season at Politico didn’t stop with the Heidi Przybyla article on the D.C. attorney general and Leonard Leo. I have written on a few occasions about the “one-weird-magic-trick” progressives:
The other thing that happens every few months, when it appears that progressives aren’t going to win a fight they believe themselves entitled to win, is that one of them writes an op-ed proposing some hare-brained magic trick — some theoretical Rube Goldberg gimmick in the rules — that will supposedly allow them to evade the consequences of losing elections, losing legal arguments, or failing to persuade people on policy.
Enter University of Baltimore law professor Kimberley Wehle, who writes on “The Little-Remembered Supreme Court Precedent That Could Protect IVF — and Abortion.”
What’s the heretofore overlooked legal doctrine that could, according to Wehle, rehabilitate Roe v. Wade and extend it to a right to IVF, you ask? Substantive due process. No, really, I’m not kidding. The idea that the due-process clause of the 14th Amendment contains substantive rights is, as everyone conversant in constitutional law knows, the underlying basis of Roe. After all, the Constitution never mentions abortion. If it protects an unenumerated right, there still has to be something that authorizes courts to protect such a right. The Ninth Amendment protects fundamental unenumerated rights against the federal government; the framers of the 14th Amendment intended the privileges and immunities clause to protect those rights against the states (as well as those enumerated in the Bill of Rights), but the Supreme Court has botched the job since the 19th century and used the due-process clause instead.
Wehle’s argument is that the abortion cases have overlooked the 1923 decision in Meyer v. Nebraska. The Court in Meyer and in its sequel, Pierce v. Society of Sisters (1925), struck down nativist laws backed by progressives and the Ku Klux Klan that had banned even private schools from teaching in any language other than English (Meyer) and compelled all children to attend public school, effectively banning religious schools (Pierce). The Court in both cases found, in substantive due process, a right for parents to control the upbringing of their children. Today, the Court likely would decide at least Pierce as a free-exercise-of-religion case, although a companion case involved a private military academy.
To start with, Wehle’s view is ahistorical. The Court that decided Meyer and Pierce would have found her argument bizarre because it would have considered abortion a crime, not a right. In 1926, in Missouri ex Rel. Hurwitz v. North, the Court found nothing in the due-process or equal-protection clauses to bar the State of Missouri from revoking a doctor’s medical license for having performed an abortion. (Dr. Hurwitz was also criminally prosecuted). While the revocation was challenged as a violation of proper procedures, Justice Harlan Fiske Stone’s opinion for a unanimous Court treated the obligation to perform no abortions as a reasonable one: “A statute which places all physicians in a single class, and prescribes a uniform standard of professional attainment and conduct, as a condition of the practice of their profession, and a reasonable procedure applicable to them as a class to insure conformity to that standard, does not deny the equal protection of the laws within the meaning of the Fourteenth Amendment.”
It wasn’t the first time: In 1898, in Hawker v. New York, the Court upheld the exclusion from the practice of medicine of a man criminally convicted in 1878 of committing an abortion. Also in 1898, in Ritter v. Mutual Life Insurance Co., the Court upheld the denial of life-insurance payouts to the family of a man who committed suicide even though the policies didn’t explicitly exclude suicide. Justice John Marshall Harlan analogized the conclusion to a decision of the Massachusetts supreme court that had denied insurance payouts to the family of a woman who died after an abortion. As Harlan wrote:
The [Massachusetts] court, observing that this voluntary act on the part of the assured was condemned alike by the laws of nature and by the laws of all civilized States, and was known by the assured to be dangerous to life, said: “We are of opinion that no recovery can be had in this case, because the act on the part of the assured causing death was of such a character that public policy would preclude the defendant from insuring her against its consequences; for we can have no question that a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion would be contrary to public policy, and could not be enforced in the courts of this Commonwealth.”
In United States v. Holte (1915), the Court concluded that a female prostitute could be prosecuted for conspiracy to violate the Mann Act (which barred transporting a woman across state lines for immoral purposes) even though, as the woman, she would also be considered the victim of the crime. In an opinion by Justice Oliver Wendell Holmes, the Court analogized it to prosecutions for abortion, in which the law typically punished the abortionist but treated the woman as the victim: “So a woman may conspire to procure an abortion upon herself when under the law she could not commit the substantive crime and therefore, it has been held, could not be an accomplice.” The dissenters disagreed with Holmes’s view of conspiracy law but agreed that criminal prosecutions for abortion were a valid analogy, and they cited several opinions from them. No justice in any of these cases between 1898 and 1926 expressed even the slightest sentiment against the constitutionality or propriety of criminalizing abortion.
In the present, Wehle completely ignores the core of Dobbs, which is that unenumerated rights aren’t an open-ended thing the courts are empowered to weave by their own moral judgment. Instead, using the framework set forth in Washington v. Glucksberg, the question is whether the asserted “right” is one that is deeply rooted in American tradition and law. While Glucksberg and even Dobbs perpetuate the category error of using the due-process clause to conduct this inquiry, they get closer to the correct standard for assessing what rights were considered fundamental and judicially enforceable by the framers of the Ninth and 14th amendments in 1791 and 1868 by looking at deeply rooted liberties. The essence of the one-weird-magic-trick approach is to ignore such constraints, so Wehle does.
Wehle also can’t seem to decide whether the reasoning of Meyer is a thing the courts have ignored in the past or a basis of Roe that deserved more attention. On the one hand, she protests of Roe and its predecessor, Griswold v. Connecticut, that “Griswold’s ethereal penumbras gave rise to unrelenting attacks on Roe as a legal outlier built on sand,” and she says that “the problem with Roe stemmed in part from its legal and political framing of reproductive rights as about women’s right to abortion.” On the other hand, she argues:
Roe was about more than a right to abortion — it was also about keeping the government out of personal family life. The core principle behind Roe — that government can’t tell people how to manage their family decisions, including whether to have kids, when to have them, how to educate them, how to decide on medical needs, and how to provide for them in terms of work-life preference and balance — is one that both sides of the debate seem to embrace, and it’s the one at the heart of Meyer. Once the debate is framed that way, based on the older rationale underpinning Griswold and Roe, conservatives must get behind the liberty interests that are truly at stake when the government decides to tell couples they must — or can’t — have a child.
Alas for Wehle, judicial precedent is about more than just “framing.” None of this is new. Griswold explicitly held that “we reaffirm the principle of the Pierce and the Meyer cases” in finding a right to contraception. Roe also cited Meyer repeatedly. And Dobbs addressed Meyer and Pierce as well, observing that they could only support a right to abortion if the Court did exactly what Wehle tries to do: reframe the argument in such vague and general terms that it loses any connection to the historical treatment of the particular practice claimed to be a right.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy . . . attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. . . . Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. . . . None of these rights has any claim to being deeply rooted in history.
The Court further noted that the parental interests in controlling a child’s education, at issue in Meyer and Pierce, involved “personal decisions that were obviously very, very far afield” from the asserted right to prevent that child from living at all. That’s common sense: Parental rights are important ones, but our society has never taken them to the reductio ad absurdum of saying that there’s a legal right to kill your kids.
We’ve seen this exact shell game played by Wehle before, and it’s how we got Griswold and Roe in the first place. In 1965 in Griswold, Justice William O. Douglas concluded the Court’s opinion by grounding the right to contraception in the traditionally rooted institution of marriage:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
This was a rhetorical smoke screen. A year later, the 66-year-old Douglas would divorce his 25-year-old third wife and marry a 22-year-old. The Court was no more faithful to its own reasoning in Griswold; just seven years later, in Eisenstadt v. Baird, the Court (with many of the same personnel) did an about-face and discarded the marriage-based nature of the right, having used it to get the outcome it wanted:
Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
This was a strategic move by Justice William Brennan, the author of Eisenstadt. The reference to “whether to bear . . . a child” was irrelevant to the case at hand but aimed to lay the groundwork for Roe. The current justices aren’t going to fall for this again, and nobody should buy the sincerity of anyone who’s trying to replay it.