Justice Samuel Alito’s opinion for a bare majority of the Supreme Court in Dobbs v. Jackson Women’s Health Organization, which ended constitutionally protected abortion rights in America, seemed to delight in invoking professor John Hart Ely’s memorable criticism of Roe v. Wade. In 1973, the same year the Roe opinion came out, Ely wrote that the court’s decision to protect a constitutional right to abortion “is not constitutional law and gives almost no sense of an obligation to try to be.”
Ely meant that he thought the Roe opinion, rather than being a principled interpretation of the Constitution, was more like a statute that a legislature would pass. The irony was apparently lost on Alito as well as Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the other members of the majority in Dobbs—because Alito’s majority opinion is not in fact constitutional law, and betrays little sense of a felt obligation to attempt to be.
Why is Dobbs not just wrong, but lawless? Because it is utterly unprincipled. It articulates a reason for overruling Roe out of one side of its mouth, then repeatedly protests that it will not be bound by this reason out of the other side of its mouth. The court’s opinion is now the law, but this is not legal reasoning that can or should be respected.
The most important aspect of the majority’s reasoning in Dobbs is its argument that the Constitution does not protect a right to abortion because the abortion right is not “deeply rooted in this Nation’s history and tradition.” To establish this rule, the majority quotes its 1997 decision in Washington v. Glucksberg, which declined to recognize a constitutional right to physician-assisted suicide (note: not a case about abortion) on those grounds—that the right was not deeply rooted in history. The court in Dobbs makes use of what has become known as the Glucksberg test to deny the right to abortion, but at the same time it insists that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Its reason for the distinction is that only abortion involves what the Roe decision called “potential life.” (The Roe decision referred to the fetus as “potential life” and not “human life” because, as even the Dobbs court agreed in sending the issue of abortion back to the political process, it is completely untenable to view the fetus as a person in the eyes of the Constitution.) But whether an asserted right is deeply rooted in American history and tradition has nothing to do with whether the claim involves a fetus.
Many constitutional rights that Americans now possess cannot be said to be any more deeply rooted in American history and tradition than abortion can. These rights include protection from involuntary sterilization, which the court upheld in 1927 during the eugenics movement; the freedom to access and use contraceptives, which was widely banned in the late 19th century and which the court did not begin to protect until 1965; the right of a nonwhite American to marry a white American, which was prohibited going back to the days of slavery and which the court did not safeguard as part of the fundamental right to marry until 1967; sexual intimacy between consenting adults in private, including same-sex intimacy, which was long regulated in American law and which the court did not protect until 2003; and the right to marry someone of the same sex, which existed as a matter of positive law in the United States beginning in 2003 and which the court did not vindicate until 2015.
If, going forward, the court were to apply the Glucksberg test in a principled fashion and so apply it to all these cases, the consequences would be draconian. And draconian consequences are an indication that the court has gotten the law wrong. That helps explain why, in Obergefell v. Hodges—the 2015 decision declaring that the fundamental right to marry includes same-sex marriage—the court expressly rejected the Glucksberg test, writing that the Glucksberg test “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” The Glucksberg test, if applied to those other rights, would revoke them. In Glucksberg itself, a majority of the justices even indicated that they might not be bound by the Glucksberg test even in the context of physician-assisted suicide, if death were near and the dying individual could not obtain sufficient relief from excruciating pain via palliative care.
In other words, even the Glucksberg court conceded that the Glucksberg test is not a tenable legal means to determine which liberty rights are protected. Because it is a constitutional wrecking ball. The test, by its own terms, is substantively biased against historically subordinated groups precisely because—as noted in the joint dissent by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—“the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens.” Reva Siegel, a professor at Yale Law School, amplifies that observation, writing that the opinion rests upon “a body of decisions and laws written by White men [that] was presented as representing America’s history and traditions, without a single woman’s voice represented; and which claimed those traditions were sufficient to justify stripping of women today of a half century of constitutional rights.”
The Glucksburg test can be used, devastatingly, to stymie any reasonable modern constitutional conception of liberty, equality, dignity, and moral progress with the conversation-stopping claim that such rights are too new to matter. Under the banner of originalism and conservative traditionalism, the majority can claim that a test that is inherently biased against women, Black people, and LGBTQ people, is “neutral.” This move cynically weaponizes a deeply rooted history and tradition of little protected liberty and vast inequality to eradicate the modern jurisprudence of American liberty and equality. It deploys constitutional provisions giving women and minorities rights as full and equal citizens to render them second-class citizens, all while professing to view them as full and equal citizens.
Justice Clarence Thomas’ concurring opinion in Dobbs evinces at least the candor to call this what it is. In his Dobbs concurrence, he writes that the court’s contraception, same-sex intimacy, and same-sex marriage decisions are “demonstrably erroneous” and that “we have a duty to ‘correct the error’ established in those precedents.” Unlike the majority, which pretends that this project stops at abortion, he acknowledges that the project merely begins there.
By firing this Glucksberg bazooka, the court is blowing up 49 years of constitutional law, which logically leads to consequences so obviously extreme that the court seeks to run away from them in the very opinion announcing those reasons. Justice Brett Kavanaugh’s concurrence attempts the same sleight of hand, asserting that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” without even attempting to explain why. If, going forward, the only liberty rights to be robustly protected are those that were privileged in 1788 or 1868, women and minorities will lose, every time.
The joint dissent makes this point, explaining that, as a matter of logic and reason, the court’s mission doesn’t end because of a professed interest in “potential life.” As those justices write: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” The dissent also underscores the majority opinion’s bias: “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”
This is not constitutional law. It is certainly not neutral. It is not even trying to be either.
