Justice Samuel Alito’s draft decision in the Dobbs abortion case is a powerfully argued legal masterpiece throughout, but its central point is made in just 25 words on page 15.
To wit: “Until the latter part of the 20th Century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”
That is the indisputable reality of abortion jurisprudence, as Alito shows through exhaustive historical research and bracing logic. In both the Roe v. Wade decision in 1973 and Planned Parenthood v. Casey in 1992, the majority of justices essentially made up constitutional provisions from thin air. As Alito wrote, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Yes, not even implicitly.
This has nothing to do with whether one’s policy preferences are “pro-life” or “pro-choice” or some mix of the two. This has everything to do with how our constitutional system is supposed to work. The Constitution’s list of rights and protections is explicit. Even if it is not exhaustive, it contains no grant of broad authority for justices to create whatever new, so-called “rights” their own sensibilities demand. In addition to rights expressly listed in the Constitution, the only other ones that are inviolable are those (quoting prior Supreme Court cases) “deeply rooted in this nation’s history and tradition” and “implicit in the [very] concept of ordered liberty.”
And yes, those strictures are meaningful, rather than open to broad interpretation. There are legitimate methods of historical and legal inquiry to determine which “rights” are both deeply rooted and obviously implicit. (For a great example of such methodology published within the past year, read The Original Meaning of the Fourteenth Amendment by Randy Barnett and Evan Bernick.) Alito even quotes a series of liberal, pro-choice constitutional luminaries who have acknowledged that Roe identified no such roots and that it essentially invented constitutional provisions from the ether.
The good news for those seeking other, nonconstitutional legal protections is that the bulk of the Constitution is not dedicated to listing rights but to creating a system whereby representative, republican processes allow the people themselves to determine how the law works in their communities. Rights or privileges that do not obviously predate society itself are not always so widely recognized as to be enshrined by the people in their Constitution. Yet these can still be protected through state and local laws.
Quoting the late Justice Antonin Scalia, Alito writes: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
As Alito demonstrates at great length, Roe was so poorly reasoned that subsequent “pro-choice” Supreme Court decisions have jettisoned all of it — both its reasoning and its practical applications. All that remains is a shell around the idea that abortion is a right. But even in reaffirming that right, Casey created an entirely new justification for it. Later court rulings further modified (and in many cases abandoned) Casey’s arguments, too.
In sum, not even those who say abortion is a constitutional right can settle among themselves why it is such a right or what provisions of the Constitution actually protect it. That’s because, as written, it manifestly does not.
“Roe was on a collision course with the Constitution from the day it was decided,” Alito wrote, “and Casey perpetuated its errors.”
If the court majority finalizes something like Alito’s draft decision, then the Constitution, rather than Roe and Casey, will happily survive that collision.
