Is The Constitution is Neutral on Abortion? - Discussion Questions for Dobbs, Part Two

JB

Here is the second of three sets of discussion questions on Dobbs v. Jackson Women's Health Organization that will appear in this year’s Levinson Balkin Con Law supplement. 

In this post I discuss Justice Kavanaugh's assertion that the Constitution is neutral on abortion and has nothing to say about it. This turns out not to be the case. Despite Justice Kavanaugh's hope that Dobbs would return the issue of abortion to the states, it is very likely that the federal courts will repeatedly have to resolve constitutional questions related to abortion in the years to come.

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4. Neutrality. Justice Kavanaugh argues that the Constitution says nothing about abortion one way or the other, and that it is neutral on the subject, so the question should be left to the political process. (Compare Justice Scalia’s argument in Romer v. Evans that the Court should stay out of cultural disputes.) 

What does neutrality mean in this context? What is the baseline by which we determine whether the Constitution is neutral? If the Constitution is neutral on abortion, why should it not also be neutral on women’s civil equality, the right to marry, the right to travel, the right to use contraceptives, the right to refuse medical treatment, or, indeed, the individual right to carry firearms outside the home for personal self-defense? Each of these results required the Court to interpret the Constitution’s text in a controversial way. Is Kavanaugh’s neutrality claim just another way of saying that he believes there is no constitutional right to abortion? 

5. Abortion rights and the rational basis test. In his dissenting opinion in Roe, then-Justice Rehnquist argued that there was no fundamental right to abortion and that the appropriate test for abortion regulation was the test that applied generally to social and economic legislation—the rational basis test of Williamson v. Lee Optical Co., 348 U.S. 483 (1955). However, Rehnquist explained, “[t]he Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra.” 

Do you believe that the current Court would agree with Rehnquist?  If the Court considered a challenge to such an abortion law, which result—upholding the law or striking it down as lacking a rational basis—would be “neutral” in Justice Kavanaugh’s sense of the word?

None of the Justices endorsed this theory, and Justice Kavanagh’s concurrence—which provided the necessary fifth vote to overturn Roe and Casey—rejected the claim. Given the distance that doctrine has already travelled in a very short pace of time, one should not discount the possibility that one or more Justices may someday find the argument attractive. What consequences would this argument have for women’s reproductive lives? Is this argument itself a form of substantive due process? (Consider, for example, a constitutional challenge to a federal statute protecting abortion rights). 

7. The right to travel to obtain an abortion. Justice Kavanaugh’s concurrence also asserts that states where abortion is criminalized may not prevent their citizens from traveling to other states to obtain abortions. The basis of this claim is the right to travel, also (ironically) an implied fundamental right. It was originally implied from the structure of the Union, see Crandall v. State of Nevada, 73 U.S. 35 (1867), then located in the Equal Protection Clause, see Shapiro v. Thompson, 394 U.S. 618 (1969), and is now protected by the Privileges or Immunities Clause of the Fourteenth Amendment. See Saenz v. Roe, 526 U.S. 489 (1999). 

Most of the recent cases concerning the right to travel have concerned states attempting to keep new residents out, for example, by denying them welfare benefits, see Shapiro, supra; cf. Doe v. Bolton, 410 U.S., at 200 (1973)(under the Privileges and Immunities Clause of Article IV, section 2, States cannot limit access to abortion to their own residents). The issue post-Dobbs is whether states can keep their citizens from temporarily traveling to other states to obtain abortions illegal in their home state, and then returning. Cf. United States v. Guest, 383 U.S. 745, 757-759 (1966)(noting Congress's power to protect the constitutional right to move from state to state to engage in interstate commerce). 

In Bigelow v. Virginia, 421 U.S. 809 (1975), a Virginia newspaper published an advertisement for abortion services in New York, where abortion was legal (when the case arose, abortion was illegal in Virginia.) The Court held that the First Amendment prevented Virginia from prohibiting the advertisement, and that Virginia could not prevent its citizens from obtaining abortions in New York:

[T]he placement services advertised in appellant's newspaper were legally provided in New York at that time. The Virginia Legislature could not have regulated the advertiser's activity in New York, and obviously could not have proscribed the activity in that State.   Neither could Virginia prevent its residents from traveling to New York to obtain those services or, as the State conceded prosecute them for going there.  Virginia possessed no authority to regulate the services provided in New York - the skills and credentials of the New York physicians and of the New York professionals who assisted them, the standards of the New York hospitals and clinics to which patients were referred, or the practices and charges of the New York referral services.

A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.

Along the same lines, states that prohibit gambling may not prevent their citizens from traveling to Nevada where gambling is legal and returning with their winnings. Of course, Bigelow was decided fifty years ago by essentially the same Court that decided Roe. One should not assume that the law will remain fixed. States where abortion is criminalized may try to chip away at Bigelow or find other devices to discourage their citizens from obtaining abortions, leading to further litigation. 

For example, suppose that Missouri declares that life—and hence Missouri citizenship—begin at conception. Suppose that state officials learn that a pregnant woman living in St. Louis plans to cross the border into Illinois to obtain an abortion, which will end the life of one of its citizens. Could Missouri argue that Bigelow does not apply because it has a right to prevent the death of a citizen who is taken across state lines without his or her consent? Could Missouri constitutionally treat travel by pregnant women outside the state as a form of kidnapping? 

8. The coming battles over reproductive rights. Overturning Roe and Casey will not put an end to constitutional litigation over abortion rights. States with pro-life legislatures will likely pass a series of laws designed to keep their citizens from obtaining abortions by traveling out of state or obtaining abortion medication. 

States may also attempt to deter people from assisting others in obtaining abortions. For example, while the Court was considering Dobbs, Texas passed S.B. 8, the Heartbeat Act, which outlawed abortions once a fetal heartbeat is detectable (usually around the sixth week of pregnancy). S.B. 8 prohibits state officials from enforcing the statute but allows any citizen to sue any other person for performing an abortion or assisting another in the performance of an abortion, and if successful, to obtain an injunction and recoup a minimum of 10,000 dollars in damages. The Supreme Court refused to prevent the enforcement of this law, leading many to suspect that it would soon overturn Roe and Casey. Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021). 

The status of IUD’s and emergency contraception also remains unclear following Dobbs, because some states may assert that they act as abortifacients. States that protect life from the moment of conception may also try to regulate in vitro fertilization, because it creates more embryos than can be implanted in a woman and the question remains how and whether doctors may dispose of them. States may turn to electronic surveillance to identify whether women are pregnant and considering abortions and seek to prevent them or punish those who assist them. 

Conversely, if the federal government attempts to protect abortion rights by statute, this will produce a series of constitutional challenges. Abortion opponents may challenge a federal abortion law under the Court’s Commerce Clause and Spending Clause precedents. Abortion opponents may argue that if federal law simply forbids states from passing laws banning abortion this would violate the anti-commandeering principle of New York v. United States and Murphy v. NCAA. If a federal law attempts to preempt state abortion legislation, there will be litigation about what kinds of state laws are actually preempted. Finally, because Dobbs says there is no underlying constitutional right to abortion, basing the statute on Congress’s Section 5 powers to enforce the Fourteenth Amendment may lead to a challenge under City of Boerne v. Flores. 

These examples merely scratch the surface of the constitutional questions that may arise in the future. Justice Kavanaugh’s hope that the Court could simply maintain a position of neutrality and send all abortion issues back to the states will probably prove as unrealistic as the Casey’s plurality’s hope that its compromise could help resolve differences over abortion. 

9. The future of equality arguments for reproductive rights. Justice Alito devotes only a single paragraph to rejecting equality arguments for abortion, hoping preemptively to settle the question once and for all. He treats the issue as “squarely foreclosed by our precedents.” But as with several other features of his opinion, the issue is more complicated than Alito lets on. Equality remains an emerging ground for the protection of abortion rights, not only in the federal courts, but especially in the states, where it appears in proposed constitutional amendments as well as in litigation. 

Equality may also play a role not only in federal legislation but also in litigation. Geduldig and Bray, which Alito relies on to reject equality arguments, have been limited by two later cases, Hibbs and United States v. Virginia (see the discussion in Chapter Eight). In Dobbs the dissenters did not directly reply to Alito’s arguments, probably because the case was litigated in terms of due process, and not equal protection. Instead the dissenters echoed language in Casey about abortion being necessary to women’s equal citizenship status. They emphasized “women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life,” and continuously invoked liberty and equality together as the basis of the abortion right. Given the majority’s perfunctory discussion of equality in Dobbs, a later court may regard the question of how the Equal Protection Clause applies as still open. Certainly state courts interpreting their own constitutions may choose to follow the later cases, Hibbs and Virginia. And as we have seen in other contexts (for example, the movement for marriage equality), victories in the state courts often are necessary before a claim gets taken seriously in the federal courts.

Second, Glucksberg’s test of history and tradition applies only to the Due Process Clause. It does not apply to the Court’s equal protection jurisprudence, and for an obvious reason: When people have argued for expanding equal rights and equal citizenship, they have usually been criticizing long standing social arrangements and status hierarchies rather than appealing to them. So the fact that there is a long tradition of treating people unequally is generally not a winning argument in equal protection law. Quite the contrary, it is often a justification for recognizing equal rights.