The Overturning of Roe v. Wade

 This post sets forth a number of thoughts about the Dobbs v. Jackson Women’s Health Organization decision overturning Roe and related aspects of law, policy, and politics.  Two preliminary points.  First, this post is long.  So if you plan on reading it, settle in.  Second, a number of people have asked if it is ok to share my posts.  I thus want to note up front that anyone reading should feel free to share as widely as they wish.

1.  THE MORALITY OF ABORTION.  I will start with some background and a brief synopsis of my views on the morality of abortion.  Abortion has long been one of the most important moral issues to me.  I have been staunchly pro-choice since high school.  And abortion was the first topic on which I commented to a broad public audience: an editorial for my college paper presenting a moral defense of abortion rights.

But I also have thought from the beginning that the morality of abortion is an issue upon which reasonable minds can differ.  The controversy fundamentally comes down to this: What do you believe is more important – (1) a woman’s right to bodily autonomy, or (2) the fetus’s right to life?  Both positions find strong support in various secular and religious moral traditions (which I will not detail here for reasons of time).  Thus, while I am pro-choice, I have considerably sympathy for the pro-life position.  To paraphrase actual President Bill Clinton and fictional President Matt Santos (from The West Wing), I think every abortion is a tragedy; but I think stripping women of bodily autonomy is a greater tragedy.

I will add that neither pro-lifers nor pro-choicers are hypocritical when it comes to abortion vis-à-vis their other moral views.  For example, pro-lifers are often accused of hypocrisy because they oppose abortion rights but support the death penalty.  But that position is easy to justify: guilty criminals have forfeited their right to life; innocent unborn children have not.  Likewise, pro-choicers are often accused of hypocrisy because they favor abortion rights but oppose the death penalty.  But that position is easy to justify as well: the fetus is inside a woman, thus implicating bodily autonomy; criminals are not inside another person.  I also reject claims that pro-lifers aren’t really “pro-life” because they won’t support more government aid for housing, schools, welfare, etc., that can help children once they are born.  First, one can plausibly believe that such government aid does more harm than good all factors considered (though I don’t, being a liberal).  Second, the fact that I do not want an individual killed does not, without more, obligate me to provide affirmative help for that individual.  In other words, one can oppose murder (which is what pro-lifers assert abortion is) without being committed to support any piece of the welfare state.  This is partly explained by the fact that virtually all moral traditions draw a distinction between commission (acting) and omission (failing to act).  Put simply, the duty not to kill does not imply a duty to rescue.

2.   LEGAL BACKGROUND.  The constitutional right to abortion is part of the broader constitutional right to privacy.  But “privacy” is somewhat of a misnomer. A better name would be the right to reproductive autonomy, intimate association, and bodily integrity.  Other Supreme Court privacy cases, for example, have ruled that married and unmarried couples possess the right to use contraceptives (Griswold v. Connecticut and Eisenstadt v. Baird), that Americans are free to have sex with any consenting partner (Lawrence v. Texas), that the Constitution protects the right to marriage (Meyer v. Nebraska and Zablocki v. Redhail), including same-sex marriage (Obergefell v. Hodges), that individuals may not be sterilized without their consent (Skinner v Oklahoma ex rel. Williamson), and that people have a right not to undergo involuntary surgery or be administered drugs, at least in certain circumstances (Washington v. Harper).

But neither abortion nor privacy are expressly protected by the Constitution.  That makes privacy different from rights actually listed in the text of the Constitution such as the freedom of speech (which is in the First Amendment), freedom of religion (First Amendment), the right to bear arms (Second Amendment), and the right against self-incrimination (Fifth Amendment).  The right to privacy (including all of its various components) is an “unenumerated” or unlisted right.

There are four main potential sources in the Constitution for unenumerated rights: (1) the Ninth Amendment (which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), (2) the Privileges and Immunities Clause of the Fourteenth Amendment, (3) the Due Process Clause of the Fourteenth Amendment, and (4) implication from many provisions of the Bill of Rights working together (often referred to as the “penumbras and emanations” argument).  While I think the fourth and second options are the strongest bases for unenumerated rights, the Supreme Court has settled on the third – the Due Process Clause, which provides “nor shall any State deprive any person of life, liberty, or property without due process of law.”  The Supreme Court has concluded that the Due Process Clause has a substantive component – known as “substantive due process” – that protects two groups of fundamental liberties: (1) the rights expressly set forth in the Bill of Rights (amendments one through eight), which results in the Bill of Rights applying to the states as well as the federal government (with some exceptions not relevant here), and (2) a narrow list of other fundamental rights not listed anywhere in the Constitution.

Before continuing, it is worth highlighting that there are powerful arguments that the Constitution either does not protect the right to privacy at all, or at that any right to privacy that does exist only limits the federal government and not state governments.  For example, the preponderance of the evidence supports the conclusions that the Ninth Amendment only restricts the powers of the federal government.  Thus, if the Ninth Amendment is the source of the right to privacy, then the right does not limit state powers.  Similarly, the bulk of the evidence suggests that the Due Process clause only creates procedural rights, not substantive rights (meaning essentially that the clause only grants you a right to an adequate hearing before your life, liberty, or property is taken by the government).  Therefore, the Due Process Clause cannot protect privacy because privacy is a substantive right.  Finally, there is considerable evidence that the Privileges and Immunities Clause only shields certain rights related to contracts, property, criminal law, and travel.  Accordingly, if we set aside the Supreme Court case law construing the Constitution, it is quite reasonable to believe that, as a matter of law, there is no right to privacy in the U.S. Constitution, and thus no constitutional right to abortion.

3.  ABORTION RIGHTS AND SUBSTANTIVE DUE PROCESS – THE FIRST MAIN ISSUE IN DOBBS.   Despite the arguments against the right to privacy I discussed at the end of the last section (some of which were advanced in briefs in Dobbs), the Dobbs majority – Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett – did not question the existence of the right to privacy as a component of substantive due process.  Instead, the majority ruled that substantive due process simply does not include abortion rights.  The dissenters – Justices Breyer, Sotomayor, and Kagan – of course disagreed.  (Chief Justice Roberts did not take a position on this issue because he argued in his concurrence that there was no need to address whether abortion is covered by substantive due process.)  In the rest of this section, I am going to focus on the central arguments made by the majority and the dissenters because a point-by-point breakdown would simply take too long, and for that you might as well read the entire case.  I will briefly add that I think that the best reading of the Constitution is that privacy and abortion are protected via the penumbras and emanations from various provisions in the Bill of Rights.  But I’m going to focus here on the arguments available under the existing caselaw.  If I also address other legal arguments for and against abortion and privacy rights, this post will turn into a law review article.

When deciding whether an unenumerated right is protected as part of substantive due process, the Court considers whether the right is “deeply rooted in this Nation’s history and tradition” and whether it is “essential to our Nation’s scheme of ordered liberty.”  Dobbs Majority at 5, 12.  To somewhat oversimplify, the first factor – deeply rooted – is now the focus of the analysis when a dispute arises over the existence of an unenumerated right.  In short, if a right is not deeply rooted in the history and tradition of the United States, then it is not protected by substantive due process.

Justice Alito’s majority opinion analyzes the legal history of abortion, with a particular focus on the time period from the dawn of the republic (1780s) through Roe (1973).  It argues that until the late 20^th century, “there was no support in American law for a constitutional right to abortion.  No state constitutional provision had recognized such a right.  Until a few years before Roe was handed down, no federal or state court had recognized such a right.”  Dobbs Majority at 15.  No treatises or law review articles even argued for an abortion right until 1968.  Id. at 15.  And in fact, abortion was illegal in most states through much of the 19^th and 20^th centuries (including when the Fourteenth Amendment was adopted in 1868).  Id. at 16.  “This overwhelming consensus [that no right to abortion existed] endured until the day Roe was decided.”  Dobbs Majority at 24.

If the majority’s history is correct, then I agree that the right to abortion, standing alone, is not deeply rooted in the United States.  Indeed, while the majority’s history has been criticized by many sources, if the history is only half correct, then abortion by itself fails the deeply rooted test.  And it is critical to note that the dissenters did not challenge the majority’s history.

I used the phrases “standing alone” and “by itself” in the last paragraph because some defenders of Roe, including the dissenters, argue that the right to abortion cannot be analyzed in isolation.  Instead, abortion rights are “an integral part” of the broader right to privacy I described above in section 2.  Dobbs Majority at 30.  The dissent described the point this way: “The Court’s precedents about bodily autonomy, sexual and family relations, and procreation are all interwoven—all part of the fabric of constitutional law.”  Dobbs Dissent at 20; accord id. at 5 (“[The components of the right to privacy] are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal life decisions.”).  And the majority’s history is only about the status of abortion specifically, not privacy generally.  If abortion cannot be separated from other aspects of reproductive autonomy, intimate association, and bodily integrity, and if the right to privacy as a whole is deeply rooted in our history and traditions, then the right to abortion is protected by substantive due process just like all other aspects of the right to privacy, such as marriage, sexual conduct, and contraception.  Call this the “interwoven argument.”

The majority responds to this argument in two ways.  First, those justices claim that the right to privacy, as articulated by defenders of Roe, can be understood “at a high level of generality . . . [to] license fundamental rights to illicit drug use, prostitution, and the like,” Dobbs Majority at 32, which the majority implicitly contends cannot possibly be protected by the Constitution.  But the majority presents no argument as to why privacy must be understood at such a high level of generality.  And it is not difficult to construct an understanding of privacy – based on existing substantive due process cases – that encompasses abortion but excludes illicit drug use, prostitution, and much else.  Thus, the majority needed to say more on this issue.  In particular, the majority should have explained (1) why any general right to privacy flowing from the substantive due process cases would be too broad to constitute a valid constitutional right, and (2) assuming a narrower understanding of privacy is possible, why the substantive due process cases are better interpreted as recognizing a series of distinct rights rather than a broader right to reproductive autonomy, intimate association, and bodily integrity.

However, even if the majority had presented arguments for those positions, I suspect I would not find them persuasive.  In other words, I believe (reversing the order of the two points from end of the previous paragraph) that (1) the bulk of the substantive due process cases should be read together as part of a single tapestry creating a general right to privacy, and (2) the right to privacy can protect abortion, contraception, sexual intimacy, and the like, without shielding prostitution and illicit drug use.

The main argument for the first point is that the substantive due process privacy cases all cite to and build on the ones decided before them.  As the dissenters note, “the Court has linked [the right to abortion] for decades to other settled freedoms involving bodily integrity.  Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception.  In turn, those rights led, more recently, to rights to same-sex intimacy and marriage.”  Dobbs Dissent at 4-5.  In addition, the cases all concern the same basic subjects: “Those cases safeguard particular choices about who to marry; whom to have sex with; what family members to live with; how to raise children—and crucially, whether and when to have children.”  Dobbs Dissent at 22; see also id. at 22 (“Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation.”); id. at 19 (“Because the Court has vindicated the principle over and over that . . . there is a realm of personal liberty which the government may not enter—especially relating to bodily integrity and family life.”).  Furthermore, Griswold, the fountainhead of modern substantive due process, held that the Constitution protects a general right to privacy.  And virtually every subsequent substantive due process case is best understood as articulating the contours of that right.

As for the second point, prostitution is easy to exclude because it is a commercial transaction and no other component of the right to privacy involves that type of activity.  (Note that the fact that one typically must pay for an abortion is incidental – an abortion could be provided free of charge – whereas payment is essential to the definition of prostitution.)  Illicit drug use also plausibly falls beyond the boundary of privacy because (1) bodily integrity has always been understood to be concerned more with what you may keep out of your body than what you may put in it, and (2) the consumption of illicit drugs often has serious negative impacts on many other persons, something that is not true for contraception, marriage, and even abortion (because the fetus is not a person, even if it is human life).

The majority’s second response to the interwoven argument is that even if there is a broader right to privacy deeply rooted in our history and traditions, abortion is not an integral part of that right.  In other words, abortion is not interwoven with the rest of privacy.  That is because only abortion results in the destruction of a third party – the fetus.  None of the other components of the right to reproductive autonomy, intimate association, and bodily integrity – e.g., contraception, sexual intimacy, and marriage – involve that type of harm to others.  Dobbs Majority at 32; accord id at 5, 37, 49.  I think the majority is correct that abortion is different in this way as a conceptual and empirical matter.  Abortion does result directly in the death of the fetus, whereas the other privacy rights cause far more attenuated impacts on third parties.  But it does not automatically follow from this difference that abortion must be excluded from the right to privacy as a LEGAL matter.  That conclusion must be earned through additional arguments – additional arguments the majority does not make.

The majority’s mistake here is actually quite similar to a mistake made in Roe.  The Roe Court said that states are permitted to bar abortion after viability because that is the point in time that the fetus can survive outside the womb.  But as Professors Laurence Tribe and John Hart Ely explained, the Roe Court was mistaking a definition for an argument.  Viability JUST MEANS the ability to survive independently from the mother.  So, saying that states can ban abortion after viability because the fetus can survive on its own is like saying that state can ban abortion after viability because the fetus is viable.  There is no argument there at all.

The Dobbs majority’s mistake is comparable: It contends that abortion is different because of the harm to a third party, but the Court never explains why harm to third parties itself is legally sufficient to distinguish abortion rights from other aspects of privacy – the same way that the Roe Court never explained why viability is the relevant line.  That is not to say that an argument that abortion is legally different is impossible to construct, just that the Dobbs majority made no effort to construct one.

As a matter of law, I think it is a close call whether the killing of the fetus legally separates abortion from the rest of privacy (and if it is separate, then the right to abortion must stand or fall on its own when analyzing whether the right is protected by substantive due process).  But ultimately I conclude that abortion is NOT distinct.  As I’ve said, the right to privacy is best understood as being concerned with reproductive autonomy, intimate association, and bodily integrity.  Banning abortion constitutes coercing a woman to use her body to carry a fetus to term and become a parent against her will.  To me, that goes to the very core of reproductive autonomy and bodily integrity as delineated in Supreme Court cases regardless of whether abortion results in the termination of the fetus.  Thus, I conclude that abortion is inextricably intertwined with the rest of the components of the right to privacy.  And since privacy is deeply rooted in our nations history and traditions, privacy generally and abortion specifically are protected by substantive due process.  (Note that because the majority does not challenge the proposition that privacy as a whole is deeply rooted, I am not going to present the case for that proposition, though I think it is quite strong.)

The conclusions in the previous paragraph don’t mean that abortion has to be treated identically to other components of privacy for all purposes.  As the dissenters explain, the fact that abortion ends a human life is grounds for various types of regulation that are not permitted with respect to contraception, sextual intimacy, and same-sex marriage.  Dobbs Dissent at 12 n.1.   But abortion is centrally about reproductive autonomy and bodily integrity.  Thus, while I will repeat that it is a close call, I believe that abortions fits under the constitutional right to privacy.  I therefore side with dissenters here rather than the majority: Roe correctly found that the Constitution protects the right to abortion and, accordingly, Dobbs should not have overturned Roe.

4.  ABORTION RIGHTS AND EQUAL PROTECTION – A SECONDARY ISSUE IN DOBBS.  Privacy is by far the most persuasive constitutional basis for abortion rights.  But there is one other plausible ground for such rights: the Equal Protection Clause of the Fourteenth Amendment.  (In my opinion, no other constitutional arguments for a right to abortion rise to the level of plausible, and so I will not be discussing any other arguments here.)  The Equal Protection Clause bars discrimination on the basis of sex unless the government has an important reason for treating men and women differently.  If states can bar abortions, then men will arguably have far greater control over their reproductive lives than women.  Abortion bans may thus violate the right of women to equal protection.

However, the Equal Protection Clause argument, which was raised in Dobbs, ultimately does not work for two independent reasons.  First, as Justice Alito explained in the majority opinion, “regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext designed to effect an invidious discrimination against the members of one sex or the other.”  Dobbs Majority at 10-11.  Laws limiting or barring abortion do not constitute invidious discrimination against women.  Id.  In other words, abortion laws are not sex discrimination at all, and so the Equal Protection Clause is not implicated.

Second, even if abortion regulations did constitute sex discrimination, the applicable standard for addressing such discrimination under the Equal Protection Clause is “intermediate scrutiny.”  Abortion bans can rather easily survive that level of scrutiny.

For reasons of space, I’m not going to delve into the details of the equal protection arguments.  But note that the Dobbs dissenters did not even mention the Equal Protection Clause (or any other basis beyond privacy) as a potential ground for upholding Roe and abortion rights.  This strongly suggests that the dissenters recognize that justifying abortion rights via the Equal Protection Clause does not work.

5.  STARE DECISIS – THE SECOND MAIN ISSUE IN DOBBS.  I will be far more cursory on stare decisis.  There are five basic factors the Supreme Court considers in deciding whether to overturn one of its precedents: (1) the nature of the Court’s error in the case, (2) the quality of the reasoning in the case, (3) whether the legal standards developed in the case are workable – i.e., whether they can be understood and applied in a consistent manner, (4) the effect of the case and its progeny on other areas of law, and (5) reliance interests – whether the American people have relied on the law developed in the case in planning their lives.  Factors (1) and (2) can effectively be merged into a single factor.  And, as many scholars have pointed out, they are the driving force in determining whether to overturn a prior case, in part because factors (3), (4), and (5) are particularly flexible.  See, e.g., the blog post by Professor Ilya Somin, available here (“Both majority and dissenting opinions [in Dobbs] include extensive discussions of stare decisis.  But the truth is whether you think Roe v. Wade should have been preserved on that basis is heavily correlated with whether you think it was wrong in the first place.”).  Thus, stare decisis analysis can be summarized in this way: To overturn a case, it is not enough that the case is legally wrong; the case must be DEAD wrong under the law.  And if a case is dead wrong, that is sufficient grounds to reverse it.

I think Roe is legally correct.  And so do the three dissenters.  But one can plausibly believe that Roe v. Wade is not only wrong but dead wrong.  The Dobbs majority obviously holds this view, calling Roe “egregiously wrong.”  See Dobbs Majority at 6.  Accordingly, I do not object in general to the majority’s stare decisis analysis.  In other words, given how incorrect the majority believes Roe is, I do not object to their deciding to overturn Roe as a matter of stare decisis law.

I have a number of specific objections to the majority’s stare decisis analysis.  For example, I think Casey’s undue burden test for assessing the validity of abortion regulations is just as workable as numerous other legal standards developed in the constitutional case law.  See Dobbs Majority at 56-62 (discussing workability); Dobbs Dissent at 33 (“General standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication.”).  But as I indicated, the critical factor is how wrong one thinks the decision is.  And both the majority and dissent agree that a case being sufficiently wrong can, by itself, justify overturning the case.  See Dobbs Majority at 70; Dobbs Dissent at 45.  Moreover, the vast majority of liberal lawyers and law professors agree with this point because they would overturn Citizens United (the campaign finance case that essentially allows corporations to spend unlimited amounts of money on elections) solely on the ground that the decision is legally dead wrong.

Note that the dissenters and some commentators contend or at least suggest that stare decisis should apply differently to the overturning of cases protecting a right than it does to the overturning of other types of cases, such as those denying a right.  See, e.g., Dobbs Dissent at 45-46.  But I see no basis for that position in either the text and structure of the Constitution or in the case law.  Democracy and majority rule are just as important to our Constitutional system as individual rights.  Accordingly, finding an individual right that does not exist (which unconstitutionally limits democratic regulatory authority) is just as problematic as not finding an individual right that does exist.

6.  ELIMINATING A CONSTITUTIONAL RIGHT HAS HAPPENED BEFORE.  Numerous sources in the popular press, and even some legal sources, have stated that the overturning of Roe is the first time the Supreme Court has eliminated a constitutional right.  But that is plainly not true.  For roughly thirty years at the start of the 20^th Century, the Supreme Court protected the right to contract under substantive due process, starting in a case called Lochner v. New York (1905).  The Court eliminated that right in 1937.  This was a considerably bigger change than the one brought about in Dobbs.  Overturning Roe removed only one component of the right to privacy – a very important component, but just one piece.  The rest of the right to privacy is left standing (for now).  When the Court overturned Lochner, however, it eliminated the entire right to contract, which, like the right to privacy, included numerous components.  To adopt a change of that magnitude with respect to privacy, the Court would have to do something along the lines of overturning Griswold and all or at least the bulk of the other reproductive freedom and intimate association cases.

The reversal of Lochner and its progeny is just one example.  For more on this subject, see the post by Ilya Somin entitled “Reversing Roe v. Wade Wouldn’t be the First Time the Supreme Court Gutted Precedents that Protect Individual Rights – Far From It,” available here.

7.  THE FACTORS THAT LEAD TO THE OVERTURNING OF ROE.  To do this topic justice would require a separate posting.  So I’m only going to make a few observations.  Clearly countless factors lead to the overturning of Roe, including the structure of the Senate and the Electoral College and the results of Presidential elections.  But I want to highlight the fact that, for roughly forty years, conservatives and their allies have simply focused more on the courts than liberals and their allies.  From the formation of The Federalist Society in the early 80s to the Senate Republicans’ striking hypocrisy in refusing to hold hearings for Merrick Garland in an election year but confirming Justice Barrett in an election year (and in October for that matter), Republicans, to use a sports metaphor, just wanted it more.  For example, Democratic Presidents generally appointed judges at a slower pace than Republican Presidents.  Conservatives have done more to identify and develop potential judges with known and preferred views than liberals.  Conservatives have done a better job developing a constitutional philosophy that can be presented in a simple and coherent form to the American public (originalism) than liberals have (who still don’t really even have one).  And conservative Supreme Court Justices have been somewhat more strategic in timing their retirements than liberal Justices.

Regarding the last point, many conservative and liberal lower federal court judges and Supreme Court Justices have retired at times that would ensure that their successor had similar judicial philosophies.  To illustrate, Justice Kennedy retired in 2018 so that Republican President Trump could appoint his replacement.  And Justice Souter retired in 2009 so that Democratic President Barack Obama could appoint his replacement.  But the critical outlier here is Justice Ginsburg.  Given her age and health (she was treated for cancer multiple times) and the vagaries of political elections, there is no question that she should have retired in 2011 or, at the latest, in 2013 after Obama won reelection.  True, Ginsburg is not the only recent Justice to die in office.  Chief Justice Rehnquist in 2005 and Justice Scalia in 2016 did so as well.  But Rehnquist likely would have retired before the end of Bush’s second term anyway had he not passed away.  And Scalia died unexpectedly.  Justice Ginsburg, by contrast, has no excuse.  She knew her health was tenuous at best.  And she knew that the Democrats would be up against it in 2016 trying to win a third straight Presidential election.  But she decided to hold on anyway, putting so much at risk.

I know Justice Ginsburg is a hero to many (including me), but the unavoidable fact is that her refusal to retire while Obama was in office makes her one of the central causes of Roe’s demise.  If Justice Ginsburg had retired by 2013, a liberal Justice appointed by Obama would be sitting in her seat instead of Justice Barrett.  Dobbs would then have resulted in Chief Justice Roberts (1) joining the other four conservatives to uphold Mississippi’s 15-week abortion ban, AND (2) joining the four liberals to preserve the core of Roe and the right to abortion.  (Roberts defended this compromise position in his concurrence.)  Of course, Roe might eventually have been overturned anyway on a subsequent day, with Chief Justice Roberts siding with the other conservatives on the issue in a later case.  But June 24, 2022, would not have been that day.  In sum, by stubbornly serving on the bench for too long and then dying during the Presidency of Donald Trump, Justice Ginsburg fatally undercut much of her legacy, including her work expanding the constitutional rights of women.

The loss of Roe is a sign that liberals and Democrats cannot take past victories for granted.  It also means that we need to do a much better job of keeping our eye on the ball moving forward across all areas of law and policy.  Finally, liberals and Democrats can never afford to get outworked again when it comes to the courts and the Constitution.

8.  CAN JUSTICES GORSUCH, KAVANAUGH, AND BARRETT BE IMPEACHED FOR COMMITTING PERJURY AT THEIR CONFIRMATION HEARINGS?  I watched every minute of the confirmation hearings of Justices Gorsuch, Kavanaugh, and Barrett.  None of them came close to lying.  So there clearly was no perjury.  Each Justice testified countless times over several days that they would not provide any previews as to how they might rule on virtually any case – as to either the merits or how the stare decisis factors apply.  And each expressly said at multiple points that they would not disclose their views on whether (1) Roe is correctly decided, and (2) if Roe is incorrect, whether it should be overturned given the stare decisis factors.  They all said that Roe was settled law, which it was.  And they explained the stare decisis factors multiple times.  But that is ALL they articulated in their testimony.  The whole point to the stare decisis factors is that they provide the framework for deciding when settled law should be unsettled.  Thus, the fact that Justices Gorsuch, Kavanaugh, and Barrett called Roe “settled law” but then voted to overturn the case is not misleading in the slightest.

As a result, I strongly oppose any attempt to either haul them before the Senate Judiciary Committee again or impeach them.  New Senate hearings to question the Justices about their ruling would violate the separation of powers.  If a subpoena were issued to the Justices and it came before me as a judge for adjudication, I would quash the subpoena.  And if Congress merely issues a request to the Justices, then they almost certainly simply won’t show up, and rightly so.

Regarding impeachment, the decision to impeach is solely within the discretion of the House of Representatives.  And the decision to convict is solely within the discretion of the Senate.  The Supreme Court has ruled that impeachment is “nonjusticiable” – meaning that impeachment decisions cannot be reviewed by the courts, including the Supreme Court.  So, in theory, the Supreme Court Justices can be impeached for pretty much any reason.  But relying on baseless perjury charges to seek impeachment of a Justice would do serious, possibly fatal, damage to the Supreme Court, the Constitution, and the rule of law.

9.  WHAT DOES THE FUTURE HOLD FOR THE REST OF THE RIGHT TO PRIVACY.  Might the Supreme Court overturn other important cases involving the right to privacy such as those concerning same-sex marriage, choice of sexual partner, and contraception?  The Dobbs majority said the following on that issue:  “[W]e emphasize that our decision concerns the constitutional right to abortion and no other right.  Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  Dobbs Majority at 66; accord id. at 71 (“[R]ights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involved what Roe and Casey termed ‘potential life[.]’”).  In other words, the majority indicated that we shouldn’t worry about any cases beyond those concerning abortion.  The substantive due process arguments for protecting the other rights are different.  Moreover, even if some of the other privacy cases are wrong, the stare decisis factors will apply differently to those decisions as well.  Id. at 71-72.

But as the dissenters rightly point out, we should not take such assurances at face value: “The one rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history.’ . . .  The same could be said, though, of most of the rights the majority claims it is not tampering with.  The majority could write just as long an opinion showing, for example, that until the mid-20^th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ . . . Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat.”  Dobbs Dissent at 5.

I think the dissent overstates.  For example, the right to use contraceptives was much more firmly grounded in the law when Griswold was decided in 1965 than abortion rights were when Roe was handed down in 1973.  In fact, as the majority points out, Connecticut’s ban on contraception was an “extreme outlier” at the time Griswold was being litigated.  See Dobbs Majority at 43 n.47.  But the method of analysis the Dobbs majority used for finding that substantive due process does not include the right to abortion could result in the overturning of many other privacy precedents, including Obergefell, which found a right to same-sex marriage.  Moreover, as the dissenters explain, the “law often has a way of evolving without regard to original intention – a way of actually following where the logic leads, rather than tolerating hard-to-explain lines.”  Dobbs Dissent at 27-28.  When the Court in Lawrence v. Texas (the sexual intimacy case) stated that the decision did not logically support the right to same-sex marriage, Justice Scalia said don’t believe it in his dissent.  And he turned out to be correct since Lawrence did in fact lead to Obergefell (through United States v. Windsor). 

This helps to explain why so many law professors and lawyers, myself included, were unhappy with Justice Kennedy’s reasoning for the Court in Obergefell, even though we celebrated the result.  Same-sex marriage rights can be justified exclusively under the Equal Protection Clause.  In fact, that is essentially how all lower federal and state courts grounded such rights.  But Justice Kennedy shifted the focus to due process in his Obergefell opinion.  That left the right to same-sex marriage more vulnerable than it should be because substantive due process doctrine suffers from vulnerabilities that equal protection doctrine does not.

I will also briefly note that interracial marriage is not impacted at all by Dobbs.  Bans on interracial marriage are plainly unconstitutional under the Equal Protection Clause.  (The status of same-sex marriage bans under that clause is actually debatable; the status of interracial marriage bans is not.)  Thus, no one need worry about the Supreme Court overturning Loving v. Virginia, the 1967 case that struck down anti-miscegenation laws.

So, how likely is it that the Supreme Court will overturn other privacy cases?  In his concurrence, Justice Thomas called for the Supreme Court to reconsider all of its substantive due process precedents, including Griswold (contraception), Lawrence (sexual conduct), and Obergefell (same-sex marriage).  Thomas Concur. at 3.  Justice Thomas believes that the Due Process Clause only protects procedural rights, not substantive rights, as the language of the provision suggests.  And thus all decisions under that clause finding substantive rights are wrong.  Thomas Concur. at 2.  But Justice Thomas’s concurrence is not as threatening as it might appear.

First, no other Justice joined Thomas’s concurrence.  That suggests that none of the other members of the Court are prepared to even reconsider the other substantive due process cases, let alone overturn any of them.

Second, Justice Thomas acknowledges that the Privileges or Immunities Clause might protect some of the rights currently shielded under the Due Process Clause, though he states that abortion is not one of them.  Thomas Concur. at 4.

Third, there are no broad social and legal movements seeking to overturn any of the other privacy cases like there was to overturn Roe and eliminate the constitutional right to abortion.  While we can expect some efforts by individual legislators or even states with respect to other aspects of privacy, it is unlikely that, for example, a significant number of states are going to ban contraception or even same-sex intimacy.

The area I am most worried about is same-sex marriage.  First, Obergefell was decided only seven years ago.  Second, while support for same-sex marriage is strong now and increasing (in fact, even a majority of Republicans appear to favor it, see here), there is still significant opposition in a number of deeply red states.  Thus, there is a good chance that at least a few red states will try to ban same-sex marriage again.  However, my gut is that only Justices Thomas and Alito (and maybe Barrett) would vote to uphold such laws.

Accordingly, if I had to predict, I would say that none of the other major substantive due process cases are going to be overturned any time soon, if ever.  But nothing would surprise me, and defenders of other privacy rights must remain vigilant.  See Dobbs Dissent at 28 (“[W]e cannot understand how anyone can be confident that today’s opinion will be the last of its kind.”).  For more details on this issue, see the posting here by SMU law professor Dale Carpenter, and the article here which summarizes the views of a few other law professors.  Their conclusions are similar to mine.

10.  THE FUTURE OF ABORTION LAW IN AMERICA.  The Dobbs decision returns the issue of abortion to the elected branches of government – the states, Congress, and the President.  While Congress and the President could in theory pass federal laws regarding abortion, because of Washington gridlock, we can expect most statutory action to take place at the state level.  It is not clear that Congress has the power to outright legalize or ban abortion nationwide.  The Supreme Court might hold that such laws fall beyond Congress’s authority under the Commerce Clause.  But politics will probably prevent the federal government from enacting new laws concerning abortion any time soon, even though both President Biden and some Republicans have called for eliminating the filibuster to adopt national abortion legislation.

After Dobbs, state limitations on abortion are generally valid under the federal Constitution as long as they have a rational basis – meaning any plausible justification.  Dobbs Majority at 77.  As a result, states can largely ban abortion within their borders.  I say “largely” because there may still be some constitutional limits to their regulatory authority.  For example, states may have to permit exceptions for the life and health of the mother under the federal Constitution.  Moreover, some state courts have ruled that various STATE constitutions protect abortion rights.  But I suspect that state supreme courts in red states will generally construe their state constitutions to NOT protect abortion rights.  (For an overview of current state court litigation, see the article here.)

The overturning of Roe also raises various other legal and policy issues, a number of which will result in litigation, such as (1) the scope of health exemptions in state abortion bans, (2) whether Plan B in fact constitutes an abortifacient rather than contraception, and (3) whether states can ban an FDA approved medication, which Plan B is.

Perhaps the most important undecided question of law is whether states where abortion is illegal can bar their citizens from travelling to another state to obtain an abortion where the procedure is legal (and, relatedly, prohibit financial and other types of assistance to women seeking to cross state lines to obtain an abortion).  The Supreme Court has ruled that the Constitution protects the right to travel between states, which is derived from the Privileges and Immunities Clause of the Fourteenth Amendment and the comparable clause in Article IV of the Constitution.  Applying the right to travel case law in a straightforward manner would result in states lacking the power to prevent their citizens from leaving the state to obtain abortions in places where it is legal.  And Justice Kavanaugh expressly stated in his concurrence that this is the result he would reach on the issue.  See Kavanaugh Concur. at 10 (“[M]ay a State bar a resident of that State from travelling to another State to obtain an abortion?  In my view the answer is no based on the constitutional right to interstate travel.”). 

But the right to travel cases might not apply in a straightforward manner to abortion.  That is because abortion involves the travelling person AND the fetus inside of her.  None of the prior right to travel cases involved a comparable situation (as far as I know).  Therefore, states may be able to limit women from taking a fetus outside their borders for purposes of obtaining an abortion just like they can limit parents from taking their children from the state in certain circumstances.

It is not clear whether any states are going to try to block travel for purposes of obtaining an abortion.  Some state legislators are already drafting or planning bills that would do so (including at least one in my state of Arkansas, see here).  But that doesn’t mean that any such bills will be enacted into law.  I do suspect that at least one state will eventually adopt a travel ban.  And so we can expect litigation on the right to travel at some point in the not-too-distant future.

11.  FUTURE SUPREME COURT ACTION IN OTHER AREAS OF LAW.  Dobbs indicates that the conservative majority on the Supreme Court is willing to act aggressively to correct what they deem to be problems with past interpretations of the Constitution and statutes.  I thus expect the Court to overturn at least some other significant precedents in the coming years (though generally not in the privacy context, as I explained above at point 9).  For example, I think the conservative majority is probably going to eliminate race-based affirmative action in college admissions next term.  I also suspect the Court will eliminate what is called Chevron deference in the near future (under which the Supreme Court defers to a regulatory agency’s interpretation of a statute within the agency’s domain of expertise if the statute is ambiguous).  While the just-completed Supreme Court term is likely to remain an outlier with respect to the number of blockbuster cases decided, we can expect more significant changes to constitutional and statutory law over the next decade.

12.  POLITICAL REPERCUSSIONS OF THE DOBBS RULING.  This subject would also require a separate posting to fully address.  But I want to briefly mention two points.  First, the overturning of Roe is likely to help Democrats politically.  Second, even modest political gains could have significant electoral impacts.

On the first point, Roe should wake Democrats up to the fact that, as I said above, we cannot take our past victories for granted.  In addition, women will be particularly motivated in future elections.  I would expect female turnout to go up and more centrist and even right-leaning women to vote Democratic than in recent elections. 

On the second point, women are only modestly more pro-choice than men.  Thus, I do not expect significant changes in voting patterns now that Roe is gone.  But given how evenly divided many purple states are, a small shift could have dramatic impacts.  For example, if only 4% of women who voted in the 2020 Presidential election had shifted from Trump to Biden in purple states like Georgia and Arizona, Biden’s margin would have been a lot more comfortable.  That speaks well for the Democrats’ chances in national and many statewide elections in 2022, 2024, and beyond.

It is impossible to know precisely how much Dobbs will help Democrats – and even whether it will help them at all.  But I think there is quite a good chance that the Democrats will experience modest political gains that could have large impacts on election results.

13.  CONCLUSION.  The Dobbs opinion raises various other issues, including about the nature of constitutional interpretation.  But given the length of this post, I am not going to discuss those issues here. If people have questions about other aspects of the case, please feel free to ask them in the comments.

As a final note, I will reiterate that I think that the overturning of Roe is a moral tragedy.  To the women in this country who have lost a fundamental right, I am deeply sorry.  But as you all know, the fight over abortion and much else is far from over.