In Support of Dobbs

Continued from page 26 standing of “liberty,” the Fourteenth Amendment allows states to deprive “persons” of it so long as they receive fair process. To believe in “substantive” due process, as some scholars, judges, and lawyers do, means entertaining two contradictory characteristics for the same thing, such as dry water or dark light.

Justice Samuel Alito’s majority opinion in Dobbs proceeds beyond this basic argument to reject any idea that precedent, history, or tradition would allow abortion to join a list of other rights not enumerated in the text, but nonetheless are so “fundamental” as to deserve constitutional protection. The 20th Century Supreme Court, for example, held that the Fourteenth Amendment “incorporated” most of the Bill of Rights against the states. The Court has also added a few rights to this list because they are “deeply rooted in history and tradition” and essential to our “scheme of ordered liberty.” In holding that Americans have an individual right to possess firearms, for example, the Court (Justice Scalia writing for the majority) found that a large majority of states that had ratified the Fourteenth Amendment in 1866 also had laws protecting the right to keep and bear arms.

History, however, also explains why the Justices have refused other rights entry into the constitutional canon. In Washington v. Glucksberg Rehnquist Court held that euthanasia did not count as a “liberty interest” protected by the Fourteenth Amend ment because it was not “objectively, deeply rooted in the Nation’s history and tradition.” A similar analysis has turned aside efforts to limit or end the death penalty. Justice Alito carefully explained in this same logic requires the Court to reject a constitutional right to abortion. Before, after, and at the time of the ratification of the Fourteenth Amendment, Anglo-American law treated abortion as criminal. If the framers and ratifiers of the Fourteenth Amendment had understood it to protect abortion, Dobbs reasoned, the historical record should have shown states at the time treating it as a constitutional right of some kind. But, according to the Court, there is no evidence of such an understanding. “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Justice Alito concludes. “Zero. None.”

Finally, there is one aspect of Justice Alito’s opinion that has so far drawn little comment. He wrote that the Supreme Court should get out of the “rights-creation” business except when rights are rooted in long-established historical tradition. This was the concern of one of abortion’s great defenders, Justice Ruth Bader

Ginsburg, who observed that Roe had short-circuited the broad acceptance of abortion rights through the political process. In 1992, before she joined the Court, she argued that Roe had “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.” If Dobbs restores the political process’s control over unenumerated rights, it will complicate and perhaps foreclose both liberals and conservatives who advocate “judicial engagement,” which is a byword for “judicial activism.” But conservatives can’t have it both ways. If they think abortion should be subject to legislative deliberation, they have to admit that other areas of contentious public policy should as well.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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