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Analyzing the Dobbs Draft

Evan Bernick on Abortion, Originalism, and the 14th Amendment

Politico’s publication of a leaked draft of the decision has turned the Internet upside-down, with rampant speculation about who the leaker was, whether the decision is final, and what will happen next if early-term abortion once again becomes a policy issue for states to decide rather than a right upheld by the Supreme Court.

I find the details of the leak uninteresting (except insofar as it impacts the legitimacy of the court). I am much more interested in how the five Justices voting in the majority arrived at their tentative opinion.

Evan Bernick, a law professor at North Illinois University’s College of Law, is an expert on Originalism — the judicial philosophy on which the decision is ostensibly based. Bernick joined to dissent from this assumption. Instead, he argues, Alito’s decision stems from a judicial philosophy that seeks to “stop the Court from recognizing unenumerated rights.”

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We discuss the constitutional considerations behind both the Roe decision and the (likely) looming reversal of an almost 50-year-old precedent, as well as predict how the policy issue is likely to play out in the states, with progressive states becoming destinations for women seeking abortions.

Listen or ready the summary below:

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

The draft opinion in Dobbs holds that Roe and Casey 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.

That means the Court’s draft decision does not ban abortion outright, but rather delegates to the political process whether abortion is criminalized, prohibited, or allowed. In other words, the Constitution — according to Dobbs — doesn’t have an opinion on abortion. However, in practice, Bernick notes, the overturning of Roe and Casey means that abortion will become illegal in certain states.

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.

The Federal government could pass a law overruling the states, relying on its power under the Commerce Clause on the theory that abortion is economic activity. This is perhaps even a bigger stretch than the already stretchy interpretation of the commerce clause Congress has used to justify exercises of power of the states in the past, but that’s a topic for another show.

Since the Constitution is silent on abortion, per se, how did abortion ever find its way to be a constitutionally protected right?

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 Roe … [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.

Bernick is not entirely convinced that Alito’s analysis ensures the safety of these other decisions regarding our unenumerated rights. The Bill of Rights laid out enumerated rights like free speech, association, freedom from unlawful search and seizure, etc. The Ninth Amendment expressly reminds us, “Hey, just because we didn’t list the right doesn’t mean you don’t have it.”

You have zillions of rights, too numerous to mention, that cannot be abridged by the operation of government. So how does the Supreme Court discover a new unenumerated right? Bernick tells the history of how the Court has come to elevate certain rights to constitutional status.

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 Glucksberg v. Washington, 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 Glucksberg.

Roe v. Wade sprung in part from a precedent set in Grisworld v. Connecticut, which is predicated on the right to privacy and held that married couples have a right to contraception. Without a unenumerated right to privacy, the underpinnings of Roe v. Wade kind of disappear.

[In Griswold], 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 Lawrence v. Texas, and the right of same-sex couples to marry in Obergefell v. Hodges, as constitutionally guaranteed. The inquiry in Dobbs 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.

What would abortion law look like if the Dobbs decision were final?

Assuming the Dobbs draft becomes a majority decision. From a legal standpoint, what will the abortion law look like?

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.

Just like we have right-to-work states and non-right-to-work states, we will have some states that will allow abortion and others that won’t. People can travel to get the procedure, as people currently engage in medical tourism, or they can pre-emptively “vote with their feet” and move to states that legalize or ban abortion — depending on their policy preference. Bernick notes, however, that foot voting only works for those with the resources to travel.

Grading Dobbs from an Originalist Perspective

Many believe Dobbs to be a correction of a prior mistake in the Roe decision. Does Dobbs bring us back to where we should have been on the basis of the application of originalism? I asked Bernick to grade the decision as a professor of Constitutional law and a scholar of originalism:

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. Dobbs 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 Glucksberg test, without explaining why that test for identifying unlisted fundamental rights is itself grounded in the original meaning of the Constitution. It takes Glucksberg for granted.

The outcome that Dobbs 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 The Wall Street Journal 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.

It’s important to note that the Supreme Court is not legislating on the issue of abortion, but rather asking that it be excused from the conversation about what ought to be resolved at the ballot box. Evan says the Court is crystal clear that in saying, “[Abortion rights] are not our business.”

The court could conceivably have found a Constitutional right for the fetus, effectively banning abortion nationally, and this door has not been closed to the future possibility:

[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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