I didn’t expect to react to the Dobbs decision as I did: a quick spontaneous clap followed by tears. This is a day I did not expect to see in my lifetime. Many, if not most pro-lifers (some driven by cynical partisan motivation) thought Roe and Casey would never be overturned. So when I read the words on Scotusblog “Opinion written by Alito” I just about lost it. My lifetime has spanned all but four years of Roe’s existence. I have never known any other regime. Alito’s opinion, joined by Thomas, Gorsuch, Kavanaugh, Barrett, and kinda sorta but not really Roberts, dismantled one of the most unjust, unreasoned, and non-constitutional judgments ever rendered in the history of the Court. It spoke a plain truth recognized by even intellectually honest pro-choicers: the right to abortion is nowhere in the Constitution – indeed, it isn’t even hinted at, and Roe v. Wade was an exercise of judicial legislation. It returns this issue, rightfully, to the states, meaning that the work of the pro-life cause has just begun.
The correctness of the decision is best made by the dissent. Breyer, Sotomayor, and Kagan could not even muster a proper constitutional argument. Instead, their dissent reads like a fundraising letter written by Planned Parenthood. There is barely any attempt to ground their opinion in constitutional analysis. Much of it overheated rhetoric about how women basically have no rights, as though complete womanhood can only be achieved by ready access to abortion. They spewed Squad-inspired talking points about economic opportunity (and the lack thereof) as though it has any relevancy to the central question: is abortion a protected right under the Constitution or is it not?
Alito and the rest of the majority ably vanquish both the dissent and Roberts’ Hamlet act in his concurrence. In terms of legal arguments, it was the Tyson-Spinks of constitutional debates.
Perhaps progressive legal minds can take a lesson from what happened. Over-reliance on stare decisis has enfeebled the progressive legal project, particularly on abortion. Originalists have spent 49 years perfecting reasoned arguments based on the constitutional text and history. The Federalist Society has helped churn out hundreds upon hundreds of well-trained legal minds who know the law, Constitution, and history inside and out. If pro-choicers would like to make headway on this issue judicially, then they might want to take a cue from the other side, otherwise there will be more judicial routs.
So where do we go from here? As I have indicated elsewhere, I don’t think the politics of this issue are as clear as some would like to make it out to be. Polling on this issue is skewed both by the wording of some polls as well as people’s basic ignorance. That so many people have been led to believe that overturning Roe means abortion is banned throughout our country is a failing of our civic education and an indictment of our media. Even now the lie is being propagated that this also means decisions like Griswold, Lawrence, and Obergfell will also be reversed.
Which leads me to Thomas’s concurrence, because it has given folks on both sides of the issue quite a bit of agita. Thomas flat out said that these decisions should be overturned because the doctrine of substantive due process is legal bunk (I am rather loosely paraphrasing).
As a frank legal matter Thomas is of course (as he nearly always is) correct. Many late 19th and early 20th century decisions were based on substantive due process claims. These decisions usually yielded what might be called economically libertarian outcomes. While there are a decent number of libertarian-leaning judicial analysts, such as George Will for example, who think these decisions were rightly made, many others believe they were suspect at best. After the New Deal, substantive due process was used in many opinions that resulted in court victories for socially liberal causes.
Thomas, quoting himself in the concurrence, writes
The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.
But even if Thomas is correct, why bring it up? As he lays out in the concurrence, substantive due process enlarges judicial power and permits judges to act as a sort of super-legislature, interpreting into clauses rights where none exist. It also distorts other avenues of interpretation, and it often leads to “disastrous ends,” with Dred Scot being a prime example.
As Thomas indicates, outcomes based on substantive due process claims could also be achieved by other, more legitimate constitutional means. But even hinting at overturning the decisions mentioned above can allow progressives to say “Aha! We told you so!” So is it worth it?
Again, Thomas is correct and his concerns about substantive due process are on the money. It is a pernicious doctrine. But even if he had four other justices to agree with him (doubtful) that doesn’t mean these cases are going anywhere. For justices to rule there has to be a justiciable case before them. No state is about to outlaw contraception or criminalize homosexual acts. Even on gay marriage there doesn’t seem to be any real appetite to change things. So these cases are almost certainly never going to be revisited for that fact alone.
But can substantive due process be vanquished as a legal doctrine otherwise? Without directly overturning prior legal decisions could the Court as a whole determine that substantive due process will no longer be a foundation for future rulemaking? Or does it need to be attacked root and branch with affirmative denunciations of prior decisions? It is admittedly a somewhat thorny issue for originalists. While these decisions were almost all as erroneously decided as Roe, personal opinions on the policy being overturned are almost universal in their disapprobation of the actual policy (again, perhaps less so with gay marriage). Abortion is a much different issue, and passions on that remain hot. Outside of perhaps a few nationalists, I can’t see too many legal scholars setting their sights on contraception access.
So while Thomas is ultimately right, I don’t know how much of an effort originalist legal scholars will be making to upend these precendents.
Which brings us back to the question: where do we go from here? As emotionally satisfying as yesterday’s opinion was to read, it really is just the beginning. Abortion becomes an issue to be debated on a state level. I live in a state that has already legislatively given its blessing for continued abortion on demand through all stages of pregnancy.
Which means the hard work has really just begun. Roe v. Wade was a judicial abomination that all but the most ardent pro-choicers saw as such. Getting it overturned was the easy part, for we just needed five justices who had the courage to openly declare it for what it was.
It was also a relatively unifying cause. All but the tiniest handful of pro-lifers thought Roe should be overturned.* But now that abortion properly enters the world of public policy such unity will dissipate. We’re already seeing this with some pro-lifers calling for more direct economic control and federally mandated assistance. There will certainly be divisions within the pro-life camp about how far legislation should go. Should all abortions be prohibited at every stage with no exceptions? With some exceptions? Only after a heartbeat? Or 10 weeks? Or 15?
*: Such “pro-lifers” include egg-headed former third party presidential candidates who may or may not have to read instructions on how to tie their shoe every day.
So with that unity in the pro-life camp sure to fracture, it will make convincing everyone else even more challenging. And make no mistake, our job now is to convince the rest of the country that abortion is what it is: the murder of unborn life. And if we can’t do this job, then yesterday’s victory was ultimately meaningless.