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Analyzing the Dobbs Draft

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EVAN: and held that the 14th Amendment protects a woman’s right to choose to terminate a pregnancy as a matter of constitutional law. specifies that states could not ban abortion outright during the period before a fetus is viable outside the womb.

The draft opinion in holds that and were wrong when they were decided, that they’re inconsistent with the Constitution with the meaning of the 14th Amendment, and it overrules them. It returns the issue of whether or not to ban abortion to the states, which means in practice, there are going to be a significant number of states that permit abortion and a significant number of states that ban it outright.

EVAN: There are a number of states that have, in effect, already decided to ban abortion. These are trigger laws that apply upon the contingency of Roe and Casey being overruled.

EVAN: The court had recognized that the guarantee of liberty in the 14th Amendment’s Due Process clause includes rights that aren’t specifically listed in the Constitution, such as the right to guide the upbringing of your own children. The Supreme Court has upheld certain freedoms, recognizing space of personal autonomy under the Due Process clause that are associated with familial and other intimate relationships.

There was a gradual progression through a series of decisions that held that you [also] have the right to choose whether to have children or not — to contraception. This right was recognized on the part of married couples, then on the part of unmarried couples. The next step in … [was] the right to choose whether to bear children once they have been conceived.

[P]eople are concerned [about] what’s going to happen to these other Due process precedents that recognize unlisted constitutional rights. The opinion says that the right [or lack thereof] to terminate a pregnancy is unique, in that it involves potentially the life of another person, but that the other [rights] are safe.

EVAN: It’s a combination of moral intuitions and reasoning by analogy: is this right like a right that we have already recognized?

Chief Justice Rehnquist and the late Justice Scalia were dissatisfied with this intuition-heavy, case-by-case way of identifying rights, so the court adopted the “Glucksberg framework,” named after , which involved a claimed right to assisted suicide.

In rejecting the right to assisted suicide as a constitutional right, the Court said it wasn’t “deeply rooted in the nation’s history and tradition.”

Sometimes the court goes back to the intuition reasoning by analogy framework, but the conclusion in Dobbs is that the right to terminate a pregnancy is not protected by the 14th Amendment, because it doesn’t satisfy .

EVAN: [In ]the court said that even though the right to privacy isn’t stated in the constitutional text, it emerges from “the prenumbras and emanations of the Bill of Rights.” … This becomes the foundation of a developing doctrine that eventually becomes associated less with privacy and more with the concept of liberty.

The court has said, “Yes, there’s a right to privacy, but we think that the best hook for this right to terminate a pregnancy is, in fact, the right to liberty guaranteed by due process.”

The fruits of this liberty jurisprudence, have since come to include the rights of same-sex couples to be sexually intimate in , and the right of same-sex couples to marry in as constitutionally guaranteed. The inquiry in is actually less about privacy and more about liberty. Is this right a liberty guaranteed by the 14th Amendment? If we can’t find this rights deeply rooted in our nation’s history and tradition, then it’s not liberty and it’s not protected by the 14th Amendment.

EVAN: It will look like a checkerboard, [since] different states are dominated by different political parties who have very different views on abortion.

Certain Democratic states are going to effectively serve as sanctuary states for people who are traveling from states in which abortion is banned. [P]eople who have the resources to move are going to end up leaving, and so there will be less of a political demand within states that are generally anti-abortion for leniency with respect to abortion laws. [In] short, you’re going to get more severe abortion laws in the states where abortion is banned to begin with, and more permissive abortion laws in states where abortion is supported.

EVAN: I would give it an incomplete from an originalist perspective.

The object of constitutional interpretation in this case is to determine the meaning that was conveyed to the ratifying public at the time that the 14th Amendment was enacted (1868). [Under originalism], judges are bound to follow that original meaning. does not seek to determine the original meaning of the word “liberty” in the due process of law clause, or the words “privileges or immunities of US citizens” and “equal protection,” both of which are also part of Section One of the 14th Amendment.

Instead, it relies entirely upon the test, without explaining why that test for identifying unlisted fundamental rights is grounded in the original meaning of the Constitution. It takes for granted.

The outcome that reaches — the idea that abortion is not protected by the 14th Amendment — is the generally held position by originalists, but there was an article that was just published in that called this a “triumph of originalism.” I think it barely perceives an obligation to be originalist at all. That is a disappointment for those who think that originalism is the best way to interpret the Constitution and preserve the legitimacy of the Supreme Court.

EVAN: [Alito] favorably cites scholars that have publicly argued on originalist grounds for fetal personhood as a constitutional matter. Many pro-life advocates take the view that abortion, like slavery, is not something that one should be content to allow to be voted up or down. We can expect them to be arguing on the basis of the original meaning of the Due Process clause and the Equal Protection clause, not only for the proposition that there is no right to an abortion, but actually that states are obliged to criminalize abortion. Even if the court wants to get out of the abortion business, I don’t think it’s going to be entirely able to.

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Bob Zadek

Bob Zadek

http://bobzadek.com • host of The Bob Zadek Show on 860AM – The Answer.

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