The U.S. Supreme Court has now publicly issued its decision in Dobbs v. Jackson Women's Health Organization, which overturns its decision in Roe v. Wade (1973), and thus revokes the right of women to choose abortion during the early stages of a pregnancy. Justice Alito wrote the majority opinion, with the concurrence of Justices Thomas, Gorsuch, Kavanaugh, Barrett, and Roberts. Breyer, Sotomayor, and Kagan dissented.
This is an amazing victory for the conservative legal movement as led by the Federalist Society, which has now successfully packed the Court with conservative judges. But this decision in Dobbs also displays the incoherence in the conservative jurisprudential principle of "original intent," and in so doing, it vindicates the jurisprudence of "original meaning" or "living originalism."
In this post, I continue with some themes from previous posts on constitutional originalism, the abortion debate, and the earlier version of Alito's opinion that was leaked to the press in May (here, here, here, here, and here).
This is a stunning decision because this is the first time in American history that the Supreme Court has rescinded a constitutional right by allowing state governments to coercively deny what was previously recognized as a constitutionally protected individual right. The Court is also suggesting--particularly in Justice Thomas's concurring opinion--that the Court might soon rescind other constitutional rights concerning contraception, homosexuality, and same-sex marriage.
I will identify four points of incoherence in the Dobbs decision. I will also suggest how the U.S. Congress could overturn this decision.
THE NINTH AMENDMENT
Alito repeatedly declares that "the Constitution makes no reference to abortion" (1, 5, 14). Since women's right to abortion during the early stages of pregnancy is not specifically enumerated in the Constitution, Alito argues, it should not be recognized as a constitutional right unless this right can be shown to be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty"--the standard set in Washington v. Glucksberg (1997) (5, 13, 36).
This reluctance to recognize unenumerated rights in the Constitution ignores the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In the Roe decision, the judges said that the abortion right could be founded in the Ninth Amendment, even though they favored the Fourteenth Amendment as a better textual foundation. Although Alito mentions this, he otherwise says nothing about the Ninth Amendment; and he makes no attempt to refute the idea that the abortion right could be one of those many rights "retained by the people" and thus protected by the Constitution (9-10).
Originalist judges like Alito profess to abide by the entire text of the Constitution. But then they contradict themselves when they ignore or even scorn the text of the Ninth Amendment. This is what I see as the first point of incoherence in Alito's opinion.
Robert Bork expressed the scorn for the Ninth Amendment common among conservative judges in his 1987 testimony to Congress considering his nomination to the Supreme Court:
"I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."
So conservative judges must dismiss the Ninth Amendment as a meaningless inkblot in the Constitution!
And yet there is a good argument for the suggestion in Roe that the abortion right could be one of those unenumerated rights that were "retained by the people." At the time of the American founding, American law depended on the English common law; and the common law did not prohibit or regulate abortion in early pregnancy, because it was assumed that a fetus had no separate existence from a pregnant woman until the woman felt the fetus moving, which was called "quickening," and which could occur as early as the 15th week of the pregnancy and as late as the 25th week.
One can see this common law principle in William Blackstone's Commentaries on the Laws of England, first published in 1765, which was the legal text most widely read in America. In his chapter on "the rights of persons," Blackstone identifies the "right of personal security" as "a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." He then explains: "Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter" (1765, I:125).
Notice that the right to life of the fetus begins at the point of quickening, so that if the mother aborts the fetus before this point, this is not murder. Thus does the common law balance the right to life of the fetus against the right of the mother to abort as part of her bodily liberty. The Roe decision set up a similar balance between the two rights, except that the critical point for Roe was viability rather than quickening.
Although Alito quotes from Blackstone, he never quotes the passage above, because he doesn't want to admit that the common law identified quickening as the point at which the fetus's right to life emerges.
Mississippi's "Gestational Age Act" that was at issue in Dobbs prohibits abortion after 15 weeks of pregnancy. This coincides with the earliest point of "quickening." Therefore, the Court could have decided that a 15-week cutoff point was close to the old common law standard, and that this could be upheld without totally overturning Roe. As Justice Roberts argued in his opinion, 15 weeks would leave women with plenty of time to decide about abortion. Most women know their pregnant by the 6th week. And most abortions occur in the first trimester of pregnancy. As many of the critics of Roe have said, the standard of viability is vague and arbitrary. But the Court could have overruled the viability standard while still upholding women's right to choose abortion before the 15th week. The majority in Dobbs rejected Roberts' proposal because they were determined to engage in conservative judicial activism.
WHY THE SILENCE ABOUT NOTE 19 OF GLUCKSBERG?
The second example of incoherence that I see in Alito's opinion is that he both affirms and denies the decision in the Glucksberg case. On the one hand, he relies on the claim in Glucksberg that the only unenumerated constitutional rights are those that are "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment," and then he says that the abortion right in Roe clearly does not satisfy this standard (727). On the other hand, he is totally silent about footnote 19 of this opinion, in which there is a list of eight decisions that correctly identify unenumerated individual rights that are "deeply rooted in our history and traditions," and Roe is one of them. The footnote cites Roe as "stating that at the founding and throughout the 19th century, 'a woman enjoyed a substantially broader right to terminate a pregnancy,'" which endorses the common law rule of quickening as allowing an abortion right in early pregnancy.
In the oral arguments before the Court in the Dobbs case, one of the lawyers pointed out this contradiction to Alito--that he was suggesting that overturning Roe could be justified by the Glucksberg standard, even though footnote 19 upheld Roe. In the oral arguments, Alito said nothing in reply to this objection. In his written opinion, he says nothing about footnote 19. This silence is a remarkable illustration of Alito's evasive deceptiveness.
ORIGINAL INTENT OR ORIGINAL MEANING?
The list of eight decisions in footnote 19 includes some where the Court found unenumerated constitutional rights in the original meaning of the14th Amendment, even though there was no clear evidence that these rights were part of the original intent or the original expected application of the framers and ratifiers of that amendment in 1868. For example, Loving v. Virginia (1967) is on the list, as holding that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness." This decision struck down as unconstitutional state laws requiring racial endogamy--that is, prohibiting mixed-race marriages. There is no persuasive evidence that those in the Congress who framed and voted for the 14th Amendment and those in the states who ratified that amendment in 1868 understood the amendment as prohibiting the states from making mixed-race marriages illegal.
Originalist conservatives who insist on adhering strictly to the "original intent" of those who framed or ratified the constitutional text should say that Loving was an incorrect decision that should be overturned. They do not say this, however, because they know that Loving is generally accepted as a correct decision. I see this as a third point of incoherence in conservative originalism.
To avoid this kind of contradiction in their position, conservatives should say that we must adhere not to the "original intent" of the constitutional framers and ratifiers, but to the "original meaning" of the constitutional text itself. Even though the framers and ratifiers of the 14th Amendment did not expect a decision like Loving, we can argue that the meaning of the text and principles of that amendment can properly be interpreted as prohibiting state laws making mix-race marriages illegal.
In the same way, we could say that even if securing women's abortion right in early pregnancy was not part of the original intent or original expected application of those who framed and ratified the 14th Amendment in 1868, we can make a good argument that the original meaning of the amendment can be interpreted as supporting this as a constitutional right.
Similarly, Alito endorses Brown v. Board of Education in its overturning the "separate but equal" doctrine that allowed the States to maintain racially segregated school (40). But he makes no attempt to show that this was the original intent of those who framed and ratified the 14th Amendment in 1868. In fact, there is plenty of evidence that this was not their original intent. So, again, Alito must contradict himself--both affirming and denying original intent as his standard for constitutional jurisprudence.
WILL THE CONSERVATIVE COURT RESCIND OTHER CONSTITUTIONAL RIGHTS?
Another contradiction in Alito's opinion is that he says that his reasoning in overturning the abortion right in Roe will not support the overturning of other constitutional rights--such as contraception (Griswold), homosexual liberty (Lawrence), or same-sex marriage (Obergefell). But then he does not explain how the holdings in these cases could be justified as part of the original intent of those who framed and ratified the 14th Amendment, and therefore he leaves his reader suspecting that overturning these decisions might be the next step for the conservative judicial activists on the Court.
Indeed, Justice Thomas suggests this in his opinion when he says that "in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell" (3). Now, Thomas does say that after "overruling these demonstrably erroneous decisions," the Court could consider "whether any of the rights announced in this Court's substantive due process cases are 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment." (Significantly, Thomas does not include the Loving decision upholding the constitutional right to interracial marriage as one of the decisions the Court needs to "reconsider"--presumably because he has a personal interest in protecting that decision!)
I agree with Thomas that the "privileges or immunities" clause is a more plausible ground for unenumerated individual rights than the "due process" clause. But this will work only if one moves from original intent to original meaning, which Thomas, Alito, and most of the originalists refuse to do.
HOW CONGRESS COULD OVERTURN THIS DECISION
Alito and the majority in Dobbs say that their decision turns the moral debate over abortion rights away from the courts to the American people as represented in their state legislatures. But in saying that, they ignore the possibility provided by the Constitution that the popular rejection of the Court's decision in this case could be expressed in congressional legislation overturning this decision.
Section 5 of the 14th Amendment declares: "The Congress shall have power to enforce by appropriate legislation, the provisions of this article." If the majority of those in the Congress believe that the Court's overturning of Roe is a mistaken interpretation of the original meaning of the 14th Amendment, they can pass legislation to correct that misinterpretation and declare that this amendment does protect women's right to decide on abortion early in a pregnancy.
This is as it should be, because the Supreme Court is not the only interpreter of the Constitution. Often the original meaning of a constitutional text is unclear, and in that case, we must have a moral and legal debate over its meaning. This calls for a deliberative process in which the people can ask their congressional representatives to correct the mistakes of the Court.
We see that happening right now. The Dobbs decision has provoked a political upheaval in the United States. If the Congress does not soon overturn this decision, many voters in the mid-term elections will demand that those politicians running for election promise "to enforce by appropriate legislation" the original meaning of the 14th Amendment as protecting abortion rights. The Trump Republicans will have to persuade the voters to accept the Court's decision by electing representatives pledged to support the decision in Dobbs.
In this way, the people and their representatives will decide the debate over constitutional jurisprudence as to whether we should look to the original intent of the constitutional texts or their original meaning.