Constitutional Interpretation in the Roe Reversal
On May 2, Politico published a leaked draft opinion of the Supreme Court of the United States in the case Dobbs v. Jackson Women’s Health Organization. The case concerns the constitutionality of Mississippi’s Gestational Age Act, which would prohibit abortions in the state after fifteen weeks. The appearance in the press of a leaked draft opinion of the Court is a highly unusual event unto itself, the exact circumstances of which are not yet known by the public but are currently the subject of investigation and speculation. The draft opinion, authored by Justice Samuel Alito, would not merely uphold Mississippi’s restrictive abortion law. It would overturn Roe v. Wade and Planned Parenthood v. Casey, and thereby rescind the constitutional protection for the right to privacy with respect to abortion that has been in place for nearly half a century.
Much of the public discussion about legal challenges to the right to privacy with respect to abortion in the press and in the confirmation hearings of Supreme Court nominees has, rightly or wrongly, focused on the doctrine of stare decisis. From this perspective, since the Court had already recognized and reaffirmed the right to privacy with respect to abortion, the key question was whether the Court would abandon that precedent and under what conditions the Court had a legitimate basis to do so. These issues also came up in oral argument in Dobbs. In electing to overturn precedent, the leaked draft opinion provides the following rationale: Roe and Casey were “egregiously wrong” decisions that “must be overruled” because the recognition of the constitutional protection of the right to privacy with respect to abortion was an “abuse of judicial authority” wherein “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”Alito concludes that “the authority to regulate abortion must be returned to the people and their elected representatives.”
It is first worth noting what the draft opinion does not say. It does not address the issue of whether, as a matter of basic justice or as a matter of political legitimacy, the right to privacy with respect to abortion requires constitutional protection.
This is because, notwithstanding the abstract moral provisions of the constitution, the theory of constitutional interpretation espoused in the draft opinion presupposes that these are mostly irrelevant considerations with respect to determining whether an unenumerated right is a candidate for constitutional protection. While it is presumably the case that Alito thinks abortion is some kind of grievous moral wrong, the draft opinion does nothing to support that conclusion other than to indicate that some people hold that opinion. Its primary aim is to demonstrate that the right to privacy with respect to abortion does not satisfy two key criteria it claims are necessary for an unenumerated right to require constitutional protection: that the right is “deeply rooted in [our] history and tradition” and compatible with a scheme of “ordered liberty.” According to Alito, the right to privacy with respect to abortion does not satisfy these criteria, and therefore the authority to regulate abortion must be left to the states.
It is worth contemplating just what the supposed restoration of the authority of the people to regulate abortion would constitute. This would grant states, in principle, broad police powers with respect to abortion. The people of the states could, of course, limit these powers by entrenching statutory or constitutional rights against their exercise, but they could also reserve such powers to the legislature. Some of these powers are the obvious ones that the opponents of safe and legal abortion desire: the authority to severely restrict or outright ban abortion within a state, including the authority to impose criminal penalties on women and their physicians if they are so inclined.
But it would also entail, as the late legal philosopher Ronald Dworkin pointed out, the authority to compel abortion so long as doing so promotes a legitimate state interest. This point was reiterated in Casey, which notes that but for the right protected by Roe, “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.” A draft opinion which, if it does become the decision of the Court, would authorize state policy requiring compulsory abortion or would permit the institution of a scheme of licensure for the privilege of bearing children, including the imposition of fines or penalties for failure to make use of abortion services in the absence of such license is of great concern.
I mention this not because I think this is a likely prospect — I take no position on that question — but because it suggests that the draft opinion is prima facie defective.
And while jurists are generally less willing than philosophers to contemplate what they presume to be unlikely or fanciful consequences, or “hypotheticals,” it does not require any imagination to realize that such policies are not unheard of. These were effectively part of China’s One Child Policy, for instance. Once this dimension of the right to privacy with respect to abortion is acknowledged, it becomes clear that if the Court, in overturning Roe and Casey, primarily looks to a litany of 19th Century statutes restricting or prohibiting abortion as a basis for such a determination, it has not taken its analysis of “history and tradition” very seriously.
I have postulated that the same constitutional right to privacy that protects a woman’s right to choose whether to have an abortion also protects a woman’s right to not be compelled to have an abortion. It might be claimed that this point is irrelevant because it is possible to have one without the other: it is possible to jettison the right to choose and retain the right not to be compelled. It is certainly possible to conceive of a legal regime that is barred from compelling a woman to have an abortion without that woman having an individual right against such compulsion. For instance, if the state restricts itself from exercising that prerogative, or because it would violate the rights of someone else, e.g., if an embryo or fetus is considered to be a rights-bearing person, or if a woman’s body is considered the property of another person, and so on.
However, I would suggest that if a woman has an individual right not to be compelled to have an abortion, or, in other words, if such an invasion of her body by the state is an injury to her, as it plainly is, then, ex hypothesi, her right against such compulsion, whether described in terms of liberty, autonomy, privacy, or bodily integrity, also entails that she has the right to choose to have an abortion.
If this is the case, it follows that if the right to not be compelled to have an abortion meets the criteria for constitutional protection, then the Court is making a grave error in rescinding the right to privacy with respect to abortion.
The draft opinion is also concerning due to the precedent it sets for privacy rights in general. In a recent essay, the constitutional scholar Akhil Amar attempts to assuage these concerns. He aims to defend Alito’s claim that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” According to Amar, overturning Roe and Casey would not imperil other privacy rights because, first, the public statements of sitting Justices indicate that they are not inclined to rescind other privacy rights, (e.g., the right to privacy with respect to contraception and the right privacy with respect to interracial marriage), and, second, because the recent legislative agendas of the states suggests that there is little to no public support for doing so.
The basic idea is that, unlike other privacy rights, the right to privacy with respect to abortion remains controversial, as evidenced by the persistence of legal challenges by various states. Therefore, other rights are unlikely targets for rescindment.
But this point is cold comfort for those who take the right to privacy with respect to abortion to have the same foundation as the other privacy rights. Perhaps the current composition of the Court can make peace with the apparent interpretive inconsistency of recognizing some privacy rights and not others, of declaring some privacy rights fundamental rights and treating the recognition of others as tantamount to judicial usurpation. But that does not prevent a future Court from using the reasoning in this draft opinion, if it does become the decision of the Court, as precedent for such judicial misadventure. (Of course, no precedent can prevent a majority of the Court that is willing to dispense with precedent altogether from imposing its interpretation of the Constitution on the nation.)
Presumably the reason Amar does not find the draft opinion to be concerning is because he does not see any such inconsistency. He agrees with Alito’s assessment that “abortion is fundamentally different” from other privacy rights, a point on which he is cited as an authority in the draft opinion. One reason, put forth by Alito and Amar, for the supposed distinction between the right to privacy with respect to abortion and the other privacy rights is the presence of an interest in protecting “potential life.”
The implication is that the right to privacy with respect to abortion entails unique conflicts that other privacy rights do not. But this is not plausible.
First, it is necessary to be clear about what the nature of the conflict is. The legitimate state interest, acknowledged in Roe and Casey, of protecting potential life, presents a conflict between individual liberty and public policy. When this is recognized, there is plainly no relevant difference between the right to privacy with respect to abortion and other privacy rights. All of these may be in conflict with various kinds of social policy, for instance, in regulating the “morals” of a community, as anti-miscegenation laws certainly purported to do.
The other reason, adduced by Alito and mentioned by Amar, states that the right to abortion with respect to privacy is distinct because abortion “destroys an ‘unborn human being.’” But the Court has not dared to claim, even in this draft opinion, as it could not do without venturing into a constitutional quagmire, that an unborn human being is a constitutionally rights-bearing person. So it is not clear what the point of this claim is supposed to be or how it factors into constitutional interpretation.
It remains to be seen whether the official Dobbs decision will differ in any significant way from the draft opinion. What is clear is that the Court is on the verge of rescinding the right to privacy with respect to abortion.