Deeply Rooted in Mystery and Suspicion: A Further Thought on Alito's Effort to Distinguish Other Unenumerated Rights

 by Michael C. Dorf

Part II of Justice Alito's leaked draft opinion in the Dobbs case argues at length that there is no constitutional right to abortion because such a right is not deeply rooted in history and tradition. Much of the argument is tendentious law office history, but there is a further problem. Many of the cases protecting other unenumerated rights would also fail this test if applied at the level of specificity that Justice Alito would apply it. For that reason, in my Verdict column yesterday I suggested that such other rights could be in jeopardy. I focused especially on the LGBTQ+ cases. Here's how I explained why Justice Alito's reassurances that the case only overturns abortion rights are not very reassuring:

[The Alito draft] first notes that Roe and Casey relied on prior cases recognizing such rights as the right to marry, to direct the education of one’s children, and to avoid unconsented surgery. It then also notes that the plaintiffs and the United States as amicus had connected the abortion right to the right of consenting adults to engage in same-sex sexual conduct (recognized in Lawrence v. Texas in 2003) and the right of same-sex couples to marry (recognized in Obergefell v. Hodges in 2015). Notably, however, the Alito draft then goes on to distinguish “the abortion right from the rights recognized in the cases on which Roe and Casey rely.” Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the Court stands prepared to overrule Lawrence and Obergefell.

To be sure, the general language that precedes the seeming carve-out of Lawrence and Obergefell would appear to distinguish those cases from abortion as well. The supposedly crucial distinction to which the draft points is this: "Abortion destroys what [Roe and Casey] call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'” If I were arguing a future case in which the Court were asked to overrule Obergefell or Lawrence, I would surely emphasize that unlike abortion, the right to marry or have consensual sex with a person of the same sex causes no harm to third parties. For now, however, I want to point out how awkwardly this attempted distinction fits with a basic premise of the draft opinion.

In the very opening paragraph of the draft, Justice Alito claims that the Constitution is neutral with respect to abortion. Some people believe "abortion ends an innocent life," the draft says, whereas others believe it "invades a woman's right to control her own body." Roe and Casey erred, Justice Alito says, by resolving this debate as a constitutional matter. The draft repeatedly says that overturning Roe and Casey will turn the issue over to "the people's elected representatives."

And yet the main ground that the draft offers for distinguishing abortion from the various other unenumerated rights the Court has recognized under the rubric of privacy and substantive due process is that abortion "destroys . . . the life of an 'unborn human being.'" It's true that Justice Alito puts quotation marks around "unborn human being," as if to signal that he is not endorsing the view that a fetus, embryo, or zygote is a full human being with the same rights and interests as a 30-year-old woman. But that's a distraction. If Justice Alito means the draft to distinguish abortion from all other unenumerated privacy rights on this ground, then it must be that he and any Justices who end up signing onto the draft actually think that abortion destroys the life of an unborn human being. Otherwise, this is not a meaningful distinction.

At the risk of belaboring the point, I'll give a further illustration. Texas v. Johnson held that there is a constitutional right not to be criminally punished for burning a United States flag. Now suppose that Texas prosecutes Shmonson for burning a Texas flag. Shmonson defends by pointing to the Johnson case. Texas argues that state-flag burning somehow poses a greater danger than American-flag burning and thus seeks to distinguish Johnson. Surely a court would not rule for Texas on the mere ground that some people believe that the danger from state-flag burning is worse than the danger from federal-flag burning; for Texas to prevail, the court itself would have to conclude that state-flag burning is worse.

Likewise in Dobbs, the claim that abortion is different from the other rights because abortion destroys the life of an unborn human being only effectively draws the distinction that Justice Alito seeks to draw if he is saying that abortion actually destroys the life of an unborn human being; it's not enough that some people think so.

But now the inconsistency should be obvious. To distinguish those other unenumerated constitutional rights, Justice Alito's draft does the very thing that he claims not to be doing in the first paragraph and throughout the opinion: he takes the anti-abortion side in the abortion debate despite claiming to be neutral.

If there is a silver lining for other rights here, I suppose it is that the draft opinion's pretense to neutrality was never much more than that. For nearly five decades, Republican presidents and Senators have been selecting Justices with the single-minded aim of overturning Roe. Given the number of appointments they have had (thanks to lucky timing and the undemocratic nature of the Electoral College and the Senate), it's remarkable that it has taken as long as it has for them to finally stand on the brink of success. If they do follow through and overrule Roe, it will not be because a majority of Justices conclude that the Constitution is neutral on abortion--even if that is the rhetorical stance they take.

Accordingly, we can take seriously the ground the Alito draft offers to distinguish abortion from all other rights. A majority of this Court apparently believes that abortion--even in the very earliest stages of pregnancy--is the deliberate destruction of the life of a human being. Although their action in Dobbs based on that belief will have disastrous consequences for millions of Americans, it means that the distinctions the draft opinion draws to preserve other rights could be genuine and durable. How's that for optimism?!