In order to understand how truly radical the Dobbs decision is, a little legal jargon is necessary. Like second year law students, millions of us are trying to understand and define “substantive due process”. The majority opinion in Dobbs actually does a decent job of defining it, but in brief terms, substantive due process is a legal theory that the 14th Amendment, in addition to making the specific rights set out in the Bill of Rights applicable to state governments, also created a set of implied rights of privacy and autonomy. Where the Dobbs majority immediately betrays the weakness of its decision is when it then states: “[i]n deciding whether a right [is constitutionally protected], the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’”. (Op., p. 12) The earliest case it cites is from 1996. Contrary to the majority’s assertion, this framework is a relatively modern one, and is deeply suspect. After all, racism and misogyny is “deeply rooted” in this nation’s history, so, you know, no thanks. Justice Thomas, in his concurring opinion, argues that “substantive due process” should be abandoned altogether. That position deserves its own column, which I will post shortly.
In any event, the right to abortion in Roe and Casey is based on substantive due process. It is also the theory which gave us Loving (protecting the right to interracial marriage), Griswold (protecting access to contraception), Lawrence (protecting the right to consensual adult sex) and Obergfell (protecting the right to same sex marriage), among other cases. A number of thoughtful pieces have already been written suggesting that we should believe Justice Thomas’s argument will prevail, despite Justice Alito insisting on behalf of the majority that those cases are not in jeopardy. I have bristled a bit at these analyses, not because they aren’t important and potentially true – after all, at least two of the Justices signing on to the majority opinion have perjured themselves in order to be confirmed, so promises about precedent are not reassuring. My discomfort is twofold. First, and perhaps trivially, I don’t want to distract from the plain and terrible, immediate pain that this decision has created – millions now subject to forced birth laws. Second, and the point which has not gotten enough attention, the basis for Justice Alito’s assertion that Dobbs does not implicate other substantive due process rights is itself profoundly frightening.
Here’s what Justice Alito says: “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” (Op., p. 32). The majority throws out this assertion as if it is somehow self-evident that it is a distinction for purposes of substantive due process.
But why? Of what constitutional relevance is the fact that abortion deals with “potential life”? The only possible answer is that the majority believes that “potential life” is entitled to special legal status, different from the other substantive due process rights of privacy. The scope of such legal status is not even acknowledged, let alone explained, in the majority opinion, an omission that is surely deliberate. In its lengthy discussion of the history of abortion, the majority questions the logic of using either “quickening” or “viability” as a test for when “potential life” should be entitled to protection. The clear implication of these criticisms is that the majority believes that “potential life” starts from the moment of conception, regardless of the manner of conception, and that such “potential life” has constitutional status.
Forced birth lawyers are no doubt parsing this language as we speak. If “potential life” has constitutional status, then you can be sure attorneys in states where abortion is permitted by statute will bring suit asserting that “potential life” is constitutionally protected. The Dobbs opinion invites this argument. Here’s the first sentence of the last paragraph of the majority opinion’s discussion of substantive due process: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” When this Court is presented with that question, there is no doubt in my mind that this Court will rule that “potential life” is entitled to constitutional protection, and that any legislation which purports to allow abortion is state action without due process and invalid. The result of such a ruling will be that no state is permitted to enshrine legal protections for abortion.
Welcome to a reinvigorated patriarchy.
This is a Creative Commons article. The original version of this article appeared here.