Laurence Tribe, a Harvard Law School professor once thought to be a future nominee for the Supreme Court (too liberal, I guess), has written a comprehensive attack on the Dobbs decision of the Court—the decision that overturned Roe v. Wade. Tribe is an expert on American Constitutional law (in fact he wrote the definitive book on the subject), so he knows his onions. And his critique of the majority decision is devastating, showing that it’s not only politically based and rests on shaky legal arguments, but allso rests firmly on Christianity.
It’s a long article, and not always an easy read (Tribe isn’t a master of lucid prose), but it’s well worth perusing, for it’s quite convincing that Alito’s majority argument for overturning Roe (“there’s nothing in the Constitution conferring a right to abortion”) is bogus.
The article, despite being in the New York Review of Books, is free; click below to read it.
I’ll just put what I see as Tribe’s main points in bold below. Indented bits are (usually) quotes from the article.
The Ninth Amendment reserves unnamed rights as protected by the Constitution, and the Fourteenth Amendment protects deprivation of “life, liberty, and property without due process of law.” These together protect the right to abortion.
Here’s the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
And the Fourteenth (section 1; the “Liberty Clause”): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Tribe’s take:
That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”
. . . Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”
Put simply, Dobbs is a fiat issued by five justices simply “because they could.”
As for the Ninth not conferring any right to abortion,
Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.
The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.
And a bit more, concentrating on Kavanaugh’s decree that the court would leave each state to decide for itself, and invoking a nonexistent “right to interstate travel” as being in the Constitution:
Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.
Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.
This whole kerfuffle shows the deficiencies of “originalism”: that judgments should be made based on what’s explicitly stated in the Constitution or what would have been understood when it was written. There are simply too many things that have changed since the Constitution was written, things that could not have been anticipated by its authors.
The Court’s insistence that Roe had “no sound basis in precedent” is bogus.
Tribe:
To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”
But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.
Tribe adds that justices in the Dobbs majority have expressed opposition to other rights, such as the right to marry guaranteed by Obergefell v. Hodges, and those “rights”, too, are endangered. Though the majority opinion says that the Dobbs decision is a one-off, “limited to the present circumstances”, that’s probably not true. As the minority opinion notes, ““Either the mass of the majority’s opinion is hypocrisy (“duplicity”, as Tribe calls it), or additional constitutional rights are under threat. It is one or the other.”
The Court’s ruling that states can ban all abortion as one option is explicitly a religious view, and thus violates the First Amendment.
Tribe:
Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade, is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:
Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.
The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.
And this means that state rulings that “personhood” or “fetal rights” begin at conception are also religious views and abrogate the First Amendment (remember that members of other religions have insisted that the Dobbs decision violates their rights). Here’s something Tribe wrote in 1973 to defend the decision in Roe v. Wade:
Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.
And what he writes now:
It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.
It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.
The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.
These three arguments in tandem (particularly the last one) make a compelling case that not only is the right to abortion not specifically in the Constitution, but didn’t need to be to be Constitutional, fpr similar rights have been affirmed as Constitutional despite their similar status to the “right to abortion.” As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.
The Dobbs decision was wrong from the get-go, and Tribe’s article is the most cogent one yet to show us why. Given the youth of the conservative justices, it’s likely that equally wrong decisions will follow, giving bogus Constitutional justification.
At the end, Tribe mentions a speech recently given by Alito mentioning the notion that “religious liberty is worth special protection.” Nope, it’s not, for secular liberty, with its philosophy not based on the concept of a “soul,” is worth just as much protection. One cannot base laws on ideas that are manifestly bogus, like a soul, and rest solely on unevidenced religious views.
The solution? Tribe notes that he reluctantly thinks that the court should be enlarged to thirteen judges, but he also recognizes that this is not politically feasible. As for me, I see no solution at all. Mitch McConnell, as well as RBG, who refused to retire, have produced this shameful situation.
h/t: Darrell