SYMPOSIUM

A “right” without constitutional foundation

This article is part of a symposium on the upcoming argument in Dobbs v. Jackson Women’s Health Organization. A preview of the case is here.

Helen Alvaré is the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University.

Today, nearly 50 years post-Roe v. Wade and 30 years post-Planned Parenthood v. Casey, it is plain to see that both cases are political, not constitutional, decisions. In its opinion in Dobbs v. Jackson Women’s Health Organization, therefore, the Supreme Court should return the question of abortion to the states.

It is virtually impossible to imagine a majority of the current court adopting any of the subjective, contradictory, ahistorical, and vague Roe and post-Roe iterations of “substantive due process” analysis it has used to constitutionalize decisions about sex and childbearing. It seems equally unlikely, and empirically unattainable, that the court could ground a right of abortion upon the alternative argument suggested by dicta in Casey and currently promoted by abortion activists: women’s “equal citizenship.”

Both Roe and Casey rely explicitly upon the claim that abortion is part of a right to “privacy,” within the substantive due process protection of the 14th Amendment. But neither case relied upon a recognizable or legitimate due process test. Pre- and post-Roe – outside of cases concerning abortion and same-sex relations – it has been the court’s practice to articulate substantive due process rights in relation to the nation’s history, traditions, and legal norms. Pre-Roe, the court required such rights to be “established beyond debate as an enduring American tradition,”and “implicit in the concept of ordered liberty.”

Post-Roe too, the court reiterated these pre-Roe standards, and further stated that substantive due process rights must reflect a “careful ‘respect for the teachings of history [and] solid recognition of the basic values that underlie our society.’”

But Roe and Casey concluded that the Constitution protected abortion in the teeth of a several-hundred years’ tradition of colonial, state, and territorial laws banning most abortions beginning when medical science concluded that human life was present. The Roe majority did not grapple with this legal history, instead reciting only that abortion was a “personal liberty,” because it was “fundamental” or “implicit in the concept of ordered liberty” and bore some relationship to already constitutionally protected activities such as “marriage, procreation, contraception, family relationships, and child rearing and education.” That abortion extinguishes procreation, child rearing, and family relations went unmentioned.

Casey likewise articulated a substantive due process analysis test unmoored from precedent, national history, and the persistently expressed democratic will of the people. In a widely mocked passage, it instead defined constitutional liberties to include “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Two later cases relying upon Casey accomplished the nearly impossible, and further muddled substantive due process analysis when sex and parenting are involved. Lawrence v. Texas found a substantive due process right to homosexual relations because states were increasingly overturning longstanding bans on such behavior, as were the European Court of Human Rights and the British Parliament. But Obergefell v. Hodges found a due process right to same-sex marriage while dozens of states were increasingly re-enacting bans, and the European Court of Human Rights had not spoken. Instead, Obergefell pontificated that “all persons [have a right] to enjoy liberty” as a majority of Supreme Court justices “learn its meaning,” ‘[w]hen new insight reveals discord between the Constitution’s central protections and a received legal stricture.”

Given that it is impossible to ground a right to abortion in the history and legal traditions of the United States, and that it is unimaginable that a current majority of the court would associate itself with any of the substantive due process tests in Roe, Casey, or their progeny, it is hard to imagine how a Dobbs opinion fails to jettison the basic holdings of Roe and Casey.

Nor is the court likely to construct a right of abortion on a new, equal-protection foundation. Roe said nothing on the subject. Casey merely claimed in dicta that women rely upon abortion to achieve economic and social success, citing only the work of a single political scientist who actually wrote that the causation was likely reversed – that “abortion in the 1970s and 1980s [was] the consequence, not cause, of complex and mostly positive changes in young women’s lives since 1960.”

Furthermore, today advocates of legal abortion cannot even demonstrate correlation between legal abortion and women’s opportunities, let alone causation. To wit: While women’s educational, employment, economic, and electoral prospects grew during the 16 years from 1973 to 1989 following the enactment of many women’s rights laws alongside growth in the availability of contraception and legal abortion, women’s prospects continued to soar – often by greater amounts – after abortion rates (numbers per 1,000 women of childbearing age) and ratios (abortions per number of pregnancies) dropped by about 50% from 1990 to today.

Furthermore, any honest evaluation of a relationship between abortion and women’s flourishing would have to take account of some women’s suffering after abortion, and of abortion’s opportunity costs. Regarding the former, however, no national data set concerning post-abortion harm even exists, while indicative evidence does exist concerning both risk factors and negative outcomes affecting many post-aborted women. Regarding the latter – abortion’s opportunity costs – legal abortion induces both public and corporate actors to avoid the expensive work of accommodating women with children, instead of maintaining systems designed for men without childcare responsibilities.

Finally, the studies abortion advocates regularly cite to claim that abortion promotes women’s social and economic well-being are fatally flawed. Called the “Turnaway Studies” they are advertised as revealing the “consequences of having – or being denied – an abortion.” But a close reading reveals that they investigated only a tiny cohort of women, and did not make the comparisons the authors claimed; rather, many of the women supposedly “denied” an abortion got one later, while many of the women who had an abortion, soon after gave birth to another child.

Decades of inconsistent Supreme Court opinions and sound empirical data about women’s flourishing indicate that the time is right for the court to announce the simple truth: abortion has no constitutional foundation in either the due process or the equal protection clause. Roe and Casey need to go.