Roe v. Wade’s Abortion Ushers In A New Era Of Conservative Rights Jurisprudence.

On June 24, 2022 in Dobbs v. Jackson Women‘s Health Organization, the United States Supreme Court aborted Roe v. Wade and Planned Parenthood v. Casey, overturning its recognition of a woman’s right to an abortion. The opinions are lengthy, and I have analyzed them in some fashion on Twitter, which I won’t repeat here. The links to those analyses are as follows: majority opinion, Thomas, Kavanaugh, Roberts, and the joint dissent.

Instead, here are some thoughts on the decision that are separate from my other ponderous analyses:

I. It’s Time To Worry About The Future Of Constitutional Rights In The United States.

Tune out the frenetic mobs for a moment calling for the Supreme Court and its justices to burn in hell. The future of constitutional rights in the United States has always been in need of jealous safeguarding, but, over the past three months, the Supreme Court has issued several headscratching decisions on Bivens actions, double jeopardy, and whether you can sue cops for violating your Miranda rights. The result is that you no longer have the right to sue federal officers for constitutional violations. You can be endlessly prosecuted until the government runs out of offenses, and you cannot get damages from cops who fail to warn you of your constitutional rights before interrogating you.

In other words, liberty and its remedies have suddenly gotten a lot more fragile. Dobbs is the culmination of a puzzling term for the Supreme Court.

People who know me have already started to wonder why I take the pessimistic view when I am a “radical” opponent of abortion. While I rejoice that federal constitutional right to abortion is gone and that states are now free to regulate it, I am troubled by how the Supreme Court got to the outcome.

For the past 100 years, the Supreme Court has recognized unenumerated rights under a legal doctrine known as substantive due process. In other words, the Court has ruled that the Fourteenth Amendment’s Due Process Clause guarantees substantive constitutional rights that are not explicitly mentioned in the Constitution instead of simply guaranteeing procedural rights.

The major problem with substantive due process doctrine is that it is textually and historically standardless. Over the years, the Supreme Court has created standards, but, prior to creating any systematic standards, the Court decided Roe and Casey as well as cases involving contraception on a freewheeling recognition of a broad right to personal liberty – albeit not totally free from legal restraints. In the 1990s, conservative justices began to push back on the freewheeling, accusing judges from legislating from the bench. They developed a standard that required the Court to look to history and tradition for a right’s deep roots before recognizing it.

The standard, however, failed to garner the support of swing-vote Anthony Kennedy and the liberal justices. Thus, the Supreme Court recognized constitutional rights to engage same-sex intimacy and same-sex marriage in 2003 and 2015.

The conservative standard is subject to the same criticisms that the constitutional freewheeling is. Its roots in substantive due process invite judicial intervention in policymaking – either by the denial of rights or the granting of rights. While the liberal freewheeling relies on an evolving view of individual liberty, the conservative standard relies on a purported “iron-clad faithfulness” to history and the understanding of constitutional text as those who framed understood it.

As I have previously discussed though, no one who framed the Fourteenth Amendment understood its due process clause to guarantee unenumerated constitutional rights of a substantive vintage. Instead, they recognized that the Amendment’s Privileges or Immunities Clause guaranteed unenumerated rights, and they specifically referred to the ancient case of Corfield v. Coryell to specifically define those rights.

A historically faithful opinion in Dobbs would have ripped up the Court’s substantive due process precedents and then determined whether abortion met the Corfield definition, which it does not. That left the Dobbs majority with a problem.

Its decision indisputably calls into question other substantive due process precedents such as contraception and same-sex rights. The majority needed a distinguishing factor to avoid such a sweeping decision. Justice Alito – the much reviled author of the majority opinion – came up with one, and, wouldn’t ya know it, it was values-based. The distinction between abortion and other cases was that potential human life is on the line in an abortion while it is not in other cases.

That values-based distinction reeks of the same constitutional freewheeling that we have seen in the last 50 years. If the issue rubs our values the right way, we will decide a certain way. That’s a recipe for disaster and the reversal of Dobbs as soon as the Court’s composition changes again. More importantly, it signals a feelings-based jurisprudence where the feelings to be touched are hearts of stone.

I have long believed in a textualist and originalist view of Constitution, and I still do. The Dobbs decision reaffirmed my distrust for courts and government though. The law is only as good as those applying it, and I am worried about the future because we still don’t have clear guidelines for individual rights. Welcome to an era of conservative free-wheeling where the door to unenumerated rights is only slightly ajar at best.

II. Dobbs Does Not Outlaw Abortion Or Keep It Out Of The Supreme Court.

Roe is gone. Casey is gone. Abortion will still exist in the United States because the Supreme Court did not outlaw it. The question now is in what form? President Biden is already talking about a federal statute to guarantee abortions in the United States. Undoubtedly, pro-life advocates are talking about a federal law to ban abortions in the United States. Under a very liberal view of the Constitution’s Commerce Clause, both laws could be found constitutional. The question is close.

States will regulate abortion. Some will ban it. Others will allow it. A third category will seek a middle ground. Some states will even try to regulate crossing state lines to obtain an abortion. That question will arrive at the Supreme Court where the answer will be close, but the Court will likely strike down such regulations as violating the right to interstate travel.

Abortion will now be the subject of much litigation in state supreme courts. In other words, we no longer have uniform rights and rules regarding abortion. It, however, will still exist in some jurisdictions in the United States.

III. The Dobbs Dissent Was Rushed And Did Horrible Damage To Future Litigants’ Positions For Other Individual Rights.

The Dobbs dissenters (Breyer, Kagan, and Sotomayor) did not have enough time to write their dissent. It is painful to read and still has citations to Alito’s leaked draft opinion in it. The dissenting opinion floats between Justice Breyer’s long-time advocacy for interest balancing and an evolving constitutional text and visceral emotion. In other words, it’s easy to see that more than one person wrote the opinion.

The dissent makes startling concessions. It concedes that there is no historical basis for many of the Court’s unenumerated rights decisions over the last 50 to 70 years. The conservative justices and states will undoubtedly seize on that to relitigate those precedents.

While it appears that the dissenters made a desperate effort to hang on to Justice Breyer’s long-time advocacy for an evolving constitutional text, the opinion lacked the necessary focus to be effective in communicating it.

I can’t help but wonder if the public pressure got to the justices and forced the speedy release of the decision. It sure looks like it did.

III. Chief Justice Roberts Is Alone.

You could almost hear Chief Justice John Roberts say: “We did not need to do this.” That is the message of his opinion. He concurred in the Court’s judgment but did not join it in overruling Roe and Casey entirely. Instead, citing judicial restraint, he tried unsuccessfully to hold the justices to the question on which the Court granted certiorari: whether Casey‘s viability standard was flawed and needed to be replaced.

To be fair to Roberts, Mississippi did submit a petition to the Court that did not ask it to overrule Roe. In fact, it offered the Court an opportunity to tinker with Roe and Casey without getting rid of them. Once the Court granted certiorari, it led with an argument that the Court should overrule Roe and Casey.

Roberts, however, does not have a monopoly on fairness. The Court knew what it was getting into when it accepted the case. There was no doubt on what it was going to be asked to do, and it did what it wanted.

That said, Roberts found himself in no man’s land. He agreed that Casey‘s viability standard was unworkable and then promptly pulled another unworkable standard out of thin air that all parties rejected at oral argument as being unprincipled and unworkable: “the reasonable opportunity to choose test.” Under this test, states would have been required to afford a woman a reasonable opportunity to choose an abortion before regulating it. Roberts set up no framework on how to guide such an analysis though, and it’s certain that his test would have proven just as unworkable as Casey‘s.

IV. The World Will Not End Tomorrow, But Let’s Revisit Takings Clause Jurisprudence.

Those individuals passionately supporting abortion are crying that life for women has ended as we know it. In fact, the dissenters suggested that women have now become second-class citizens who are being forced to carry the wards of the state. If memory serves me correctly, they suggested that women should look at claiming compensation for states temporarily taking over their bodies to carry fetuses.

I never thought that I would hear Supreme Court justices call for reviving the Fifth Amendment’s Takings Clause on those grounds, but let’s do it. It wouldn’t hurt to bring renewed attention to how bad the Supreme Court has messed up that area of the law too.

The world will not end tomorrow. Life will move on, and the issue will continue to be debated and decided. Participate.