This is a deep dive into the principles underlying the main opinion in Dobbs and the concurrences, as well as the utter lack of principles underlying the dissent.
Given the length of the majority opinion, concurrence, and dissent in Dobbs v. Jackson Women’s Health Org., it has taken me a week to analyze the decision. Dobbs, as you know, overturns the “constitutional right” to an abortion, a right first created in 1973 out of thin air in Roe v. Wade. It was reworked (and expanded) in 1992 to claim that the right to abortion came out of “substantive due process” in the similarly activist opinion, Planned Parenthood v. Casey. Dobbs is yet another constitutional earthquake in a week that has been full of them.
As for Justice Alito’s majority opinion in Dobbs, it is, on the one hand, a masterpiece of originalism and, on the other, disingenuous about the logic of the case. Justice Thomas is honest that the logic of the majority demands that every case built upon substantive due process and a right to privacy, to the extent that it is not elsewhere grounded in the text of the Constitution, must now be overruled. Justice Kavanaugh’s concurrence is innocuous. Chief Justice Robert’s concurrence shows that he is a lonely politician without principles or influence on a court where originalist justices and progressive legislators are playing for the highest of stakes — the future of our nation. And lastly, the dissent in Dobbs, written by the retiring Justice Breyer, is a hat-trick; a crie de coeur for a return to judicial activism; a fever-dream about life in a post-apocalyptic, post-Roe world, and an utterly horrendous attack on our constitution as illegitimate.
Little has done more damage to the fabric of our nation and warped our politics more than the decision of six unelected men sitting on the Supreme Court in 1973 to de facto amend the Constitution and dictate to the nation a right to abortion wholly unmoored from the Constitution’s text and history. That was an obscene assault on the People’s sole power, under Article V, to amend the Constitution; an obscene assault on the peoples’ right, per Article I Section 1 and the 10th Amendment, to act through their legislators to decide democratically how to treat abortion; and, at the point of a government gun, an obscene imposition of progressive values over textual religious values in a manner that Lenin, Marx, and Robespierre would have approved.
Justice Alito explained the legal bases upon which the Supreme Court grounded its groundless claim that the Constitution contained a right to an abortion. I include the texts of the appropriate Amendments below so you can decide for yourself where such a right is to be found:
[The Supreme Court in Roe] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. See 410 U. S., at 152–153. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Id., at 152. The Court’s discussion left open at least three ways in which some combination of these provisions could protect the abortion right.
One possibility was that the right was “founded . . . in the Ninth Amendment’s reservation of rights to the people.”.
- [9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”]
Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated.
- [1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”]
- [4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”]
- [5th Amemdment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
- [14th Amendment, Sec. 1: . . “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”]
And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Roe, 410 U. S., at 153. Roe expressed the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.
The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
- [14th Amendment, Sec. 1: “…No State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”]
That last, that certain unenumerated rights lie in the 14th Amendment’s due process clause, is a legal theory known as “substantive due process.” Progressive judges have been using the theory of substantive due process for almost a century to amend the Constitution, announcing their own policy preferences as new constitutional law under its rubric.
Although progressives have treasonously abused the concept of substantive due process, there is a kernel of constitutionalism, at least to the extent that the term “substantive due process” is defined as meaning nothing more than, as the 9th Amendment implies, Americans may also have had other well-established rights as of 1791 that simply were overlooked and not included in the Bill of Rights. That does not challenge the legal concept of originalism. To the contrary, it is part and parcel thereof.
Many Americans don’t realize that there was a several-year lull between the Constitution’s ratification in 1788 and the first ten amendments being adopted in 1791. Those ten, taken together, are the Bill of Rights. The reason for that was that the majority of men who drafted the Constitution believed that, as was the case with the English system circa 1787, many rights were defined at common law and any attempt to enumerate them in the Constitution would inevitably miss some. Their exclusion, so the thinking went, would lead to their extinguishment at law. Only when it became obvious to James Madison that the future of the Constitution depended on enumerating those rights to the extent possible did he craft 12 Amendments for the proposed Bill of Rights, ten of which the states ratified in 1791.
That is why the 9th Amendment exists — so there is a basis for claiming that the people might already have well-established rights in 1791, even though they were not enumerated in the Bill of Rights. Enumerating those rights — and limiting the legitimate reach of the theory of substantive due process — went to the heart of Alito’s majority opinion.
Originalism and Justice Alito’s Majority Opinion
As Justice Alito explained in his opinion overturning Roe and Casey:
Roe was also egregiously wrong and deeply damaging. . . . Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.
With that, Justice Alito defined the only legitimate scope for claims of “substantive due process”:
The underlying theory on which this argument rests— that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, . . . but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. . . .
The second category— which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.”
As Alito went on to explain, only history can inform the Court when it conducts its inquiry into a claimed right not enumerated in the Constituion. Moreover, the Court conducting such an analysis must “exercise the utmost care whenever we are asked to break new ground…lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”
Conducting the historical analysis appropriate to interpret our Constitution, Justice Alito found no basis for the contention that the states considered abortion a right at the time of our Founding. To the contrary, they almost all severely restricted, if not entirely outlawed, abortion. That wholly comports with pre-Revolution English law as well.
As Alito summarized:
[T]he “Court’s opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 793 (1986) (White, J., dissenting). The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
(A short aside here on an ambiguity of originalism, i.e., looking to see the intent of the Founders on the date at issue. One has to look to the time of the Founding in this case, but one also needs to look to 1868, at the time the 14th Amendment was passed, to the intent of the people who ratified that amendment. I doubt that there has ever been a situation when understanding what was a right varied between the Founding and the ratification of the 14th Amendment. Still, it is possible and that is why you see originalists often looking to both periods when, as here, the 14th Amendment is implicated in a case. (See Justice Barret’s concurrence in New York State Rifle and Pistol Assoc., Inc. v. Bruen.) )
One last point before moving on from Alito’s opinion. There is a significant body of constitutional law built up over the past century where progressive justices have used the claim of “substantive due process” unmoored from any legitimate historical analysis to announce their own policies as new constitutional law. These include not merely abortion (Roe and Casey) but homosexual marriage (Obergefell), sodomy (Lawerence), birth control (Griswold), to name but a very few. In a post yesterday, I collectively referred to these constitutional pronouncements as “systemic Progressivism” — a large body of toxins infecting our body politic.
For whatever reason, Justice Alito limited his holding in Dobbs solely to abortion. Alito is careful to draw a distinction between Dobbs and all of the other Supreme Court precedents that comprise the systemic Progressivism toxins. Writes Alito:
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.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). 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.
In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim (which we accept for the sake of argument) that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mar[k] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” 505 U. S.,
Alito’s distinguishing abortion from all other “rights” announced solely on the basis of substantive due process unmoored from history is both curious and troubling. It is also a distinction without a difference. In the appropriate analysis of constitutional rights that Alito announces, what matters is whether the claimed right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” What is not part of that analysis is the particular right itself. I won’t speculate on Alito’s motive for taking this position.
Justice Thomas’s Concurrence: Take No Progressive Prisoners
Thomas correctly recognizes that Justice Alito’s rationale for striking down a constitutional right to abortion threatens every progressive decision based solely on substantive due process, a theory Thomas attacks as being without any legitimate basis:
I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause. Such a right is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” . . .
. . . [T[he Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” . . . “[S]ubstantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” . . .
The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion. The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts.
Thomas does not end there. He joins the majority opinion, but only because the sole question before the Court in Dobbs concerned abortion and the parties did not seek to overturn all of the “wrongly” decided substantive due process cases. Thomas concludes that all of these cases must be reviewed and overturned to the extent that they are not grounded in the text of the Constitution or “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” As he concludes:
Because the Court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the Court’s opinion. But, in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” Carlton, 512 U. S., at 42 (opinion of Scalia, J.). Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.
Justice Kavanaugh’s Concurrence: A Restatement
Kavanaugh’s concurrence is innocuous. It adds little to the opinion that I could see. Kavanaugh embraces Alito’s distinction without a difference to limit Dobbs only to overturning abortion and not the entire panoply of progressive invented rights. Perhaps most notable of Kavanaugh’s concurrence was the following passage:
[T]he Constitution authorizes the creation of new rights —state and federal, statutory and constitutional. But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional —————— [sic]
In his dissent in Roe, Justice Rehnquist indicated that an exception to a State’s restriction on abortion would be constitutionally required when an abortion is necessary to save the life of the mother. . . . Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother. Some statutes also provide other exceptions. . . .
The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views. As Justice Rehnquist stated, this Court has not “been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.” . . . This Court therefore does not possess the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion. . . .
In sum, the Constitution is neutral on the issue of abortion and allows the people and their elected representatives to address the issue through the democratic process.
Chief Justice Roberts Concurring In The Judgment: A Man Without Principles or Influence
The Chief Justice, the man who saved Obamacare, would also have voted in this case to save abortion as constitutional law, although he would have approved of the Missississippi law at issue — thus his concurrence. He is a man unmoored. He has no principle upon which he is willing to act other than fear of acting decisively. His is a betrayal of his judicial oath. And now he has squandered whatever influence he might have retained on the Court. He is a sad figure and his concurrence, without any prospective value, is not worth analyzing.
Justice Breyer, Dissenting, Joined by Justices Sotomayor and Kagan: Squealing Like Stuck Pigs
As a threshold matter, the dissent makes no historical argument that, at the time of the Founding or the 14th Amendment’s ratification, the practice of abortion was “deeply rooted in [our] history and tradition” or was essential to our Nation’s “scheme of ordered liberty.” Instead, Breyer freely admits the contrary is true:
The majority [overturns Roe and Casey] based on a single question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified”? Ante, at 23. The majority says (and with this much we agree) that the answer to this question is no: In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one.
Breyer should have ended the dissent there. What follows is, appropriately, an abortion.
Breyer begins his dissent by making a series of practical arguments unmoored from the law. First, Justice Breyer establishes the moral superiority of progressives and their need to dictate abortion law. He describes a parade of horribles certain to descend on all women after Roe is overturned, all of which justify the progressive judicial activism of the past century. The list of moral and physical ills is extensive and stops only ever so short of handmaid costumes and coat hangers. For instance:
Today’s decision, the majority says, permits “each State” to address abortion as it pleases. . . . That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing.
After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter. . . . The challenge for a woman will be to finance a trip not to “New York [or] California” but to Toronto.
If only the Supreme Court was a legislative body, what Breyer wrote might be relevant (even if no one, not a judge or legislator, can block travel between states — unless of course, Dr. Fauci mandates it). But as a judge in this nation, every last syllable of his preening was irrelevant. Indeed, see if you can tease out anything judicially relevant from this paragraph in the dissent:
Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions. Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.” Casey, 505 U. S., at 850. And the Court recognized that “the State has legitimate interests from the outset of the pregnancy in protecting” the “life of the fetus that may become a child.” Id., at 846. So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life. Ibid.
Suffice it to say, it is the job of Congress, not the Courts, ever to “strike a balance” between competing values. The sole job of the Courts is to define the outer boundaries of how Congress can constitutionally act.
The one place where I agree completely with Justice Breyer is in his assessment that ensconcing originalism as the only basis for a Court to analyze purported constitutional rights created out of the thin air of substantive due process is certain to mean these “rights” will all be overturned in the long run, irrespective of what Justice Alito claims:
The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all. And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, . . .. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas [sodomy laws]; Obergefell v. Hodges [gay marriage]. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” . . . But how could that be?
The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante, at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with.
. . . .
. . . So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure.
Next, the dissent goes on to portray abortion as a precedent that, regardless of how egregious and how toxic to the fabric of our nation, should still be left in place under the doctrine of stare decisis. Applying the standards Breyer would have the majority apply, we would still have Jim Crow laws and segregated schools, for the Court would never have overturned those precedents either.
The single most shocking of all the arguments the dissent makes is the argument that activist progressive judges should have the power to dictate new constitutional law because the Constitution is an illegitimate document. I would expect this from a two-bit grievance-hustler such as Joy Reid or Ibram X. Kendi. It is their lingua franca. But from a Supreme Court Justice??? This is frankly treasonous and should disqualify Breyer, as well as Kagan and Sotomayor (who signed on to the dissent), from the Court.
The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again . . . “[T]he most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted”
If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist. As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.
Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788— did not understand women as full members of the community embraced by the phrase “We the People.”
In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. Casey itself understood this point, as will become clear. See infra, at 23–24. It recollected with dismay a decision this Court issued just five years after the Fourteenth Amendment’s ratification, approving a State’s decision to deny a law license to a woman and suggesting as well that a woman had no legal status apart from her husband. See 505 U. S., at 896–897 (majority opinion) (citing Bradwell v. State, 16 Wall. 130 (1873)). “There was a time,” Casey explained, when the Constitution did not protect “men and women alike.” 505 U. S., at 896. But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. Id., at 897. Now, “[t]he Constitution protects all individuals, male or female,” from “the abuse of governmental power” or “unjustified state interference.” Id., at 896, 898. So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny?
How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages? The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution.
In other words, say the dissenters, because “citizen” had a narrower definition in both 1791 and 1868, the constitutional principles these citizens ratified are inherently invalid. And so three justices void the Constitution in its entirety.
This is progressive constitutional law by grievance politics. These people should be impeached and removed from the Court. If they cannot respect and interpret the document but rather only legislate in light of their personal grievances, they are not fit for the Court. Before we fully do away with Roe, we need to abort these obscene grievance hustlers.