Updated: Jun 27
It is vanishingly rare in human history that, once a political leader obtains power that leader
chooses to voluntarily surrender it, and even rarer for a leader to assert that even though he or she sits in a position of authority he lacks the power to grant the wishes of a substantial constituency.
But that is exactly what Justice Samuel Alito did in his brilliantly written opinion in the case of Dobbs v. Jackson Women's Health Organization, which overturned the Roe and Casey decisions creating a “right” to an abortion:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Justice Alito’s opinion was it its purest form a rejection of the liberal conceit that judges have untrammeled power to act as a super legislature, do whatever they want, and impose those views on the rest of the country.
So, the power and importance of the Dobbs decision, while deciding the important question of whether the Roe and Casey decisions are still good law, has a reach far beyond that fairly narrow question.
As Justice Alito wrote:
Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.
And it is this decision about the allocation of power between the federal judiciary and the state legislatures that has driven the Far Left into the streets to riot and burn, not a deeply held conviction that there is a constitutional right to kill an “unborn human being.”
While many conservatives (including this author) would regard any constitutional document that conferred such a right to be monstrous on its face, Justice Alito did not venture into deciding the moral issues raised by abortion, he (and the Court’s majority) properly concluded that our Constitution assigns that role to the state legislatures and that the Supreme Court in Roe and Casey improperly engaged in an exercise of “raw judicial power.”
Wrote Justice Alito:
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. (CHQ emphasis) The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’”
Justice Alito also wrote:
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125 (1992). “Substantive due process has at times been a treacherous field for this Court,” Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion for Allie), and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives. See Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226 (1985). As the Court cautioned in Glucksberg, “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” (Emphasis CHQ)
Much as the Far Left has promoted the scary narrative that under Dobbs a host of other “rights” not expressly stated in the Constitution will be imperiled, Justice Alito’s opinion in Dobbs has not pried open other cases where judicial overreach resulted in judge-made law that usurped the power of the state legislatures. Indeed, the opinion makes it clear that this decision applies only to the issue of regulating abortion:
But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
Now that Dobbs is decided and the Roe and Casey standards are no more, conservatives must recognize the benefits of the decision only go so far, and that Justice Alito’s opinion, while brilliant in its language and effect, is narrowly tailored to the issue of abortion, which has now been moved to where it always belonged – and where our work to stand for life must now be renewed – in the 50 state legislatures.
Roe v. Wade overturned
Justice Samuel Alito
Dobbs v. Jackson Women's Health Organization
Roe v. Wade
raw judicial power