More on Text, History, and Tradition - Discussion Questions for Dobbs, Part One

JB

Here are the discussion questions for Dobbs v. Jackson Women's Health Organization that will appear in this year’s Levinson Balkin Con Law supplement. These questions arose out of conversations with my colleague Reva Siegel.

Dobbs raises many important issues, so I've broken the discussion questions into three segments. The first set of questions focus on Justice Alito's (mis)use of Washington v. Glucksberg, and his use of history. (For more on this subject, see the discussion of Bruen published a few days ago.)

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1. What is the test for fundamental rights? The return of Glucksberg.  Justice Alito’s opinion in Dobbs employs arguments made by the dissenting Justices in Obergefell v. Hodges. He takes his test for fundamental rights under the Due Process Clause from Washington v. Glucksberg (1997). According to this approach, one must engage in a “careful description” of what right is at stake and one must show that this right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” If a right is not “deeply rooted in this Nation’s history and tradition,” it is irrelevant that it is otherwise very important. To decide whether a right is deeply rooted, Alito argues that we must look to whether there is a long history of protecting the specific right at issue—in this case, the right to abortion—and he concludes that there is not. (The debate over what history shows is discussed in note 2, infra). 

It is important to note, however, that Glucksberg was decided only five years after the Court had just reaffirmed Roe in Casey. Justice Kennedy the co-author of Casey, was in the majority, and Chief Justice Rehnquist cited Casey as an example of a decisions consistent with his general approach. See 520 U.S. at 720, 726-28. 

In Dobbs, by contrast, Justice Alito invokes Glucksberg without ever mentioning that it recognized abortion as a protected liberty. He appeals to Glucksberg’s history and traditions test as authority to argue that because abortion was banned in the past, it is not protected by the Due Process Clause. 

In general the Glucksberg test has been favored by the Court’s conservatives, but it has not been accepted by the Court’s liberals. For example, the Court refused to follow Glucksberg’s approach in either of the substantive due process cases that followed it, Lawrence v. Texas and Obergefell v. Hodges. 

In fact, Justice Kennedy’s opinion in Obergefell specifically rejected the approach that Alito takes in Dobbs. Kennedy explained that the claim that liberty “must be defined in a most circumscribed manner, with central reference to specific historical practices…. may have been appropriate for the asserted right [in Glucksberg] (physician-assisted suicide), [but] it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy…..If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.” (It is worth noting that Alito dissented in Obergefell on the basis of Glucksberg, and Justice Scalia dissented on the basis of Glucksberg in Lawrence). 

This dispute between liberal and conservative Justices over how to understand the nature of liberty goes back even further to the debate between Justices Scalia and Brennan in Michael H. v. Gerald D., 491 U.S. 110 (1989), over how narrowly or broadly to read the nation’s traditions. For the most part, the Glucksberg approach has been ignored except when the conservative Justices have had a majority to limit expansion of implied fundamental rights. But since the Court now has a 6-3 conservative majority, Glucksberg (or at least Alito’s redacted version of it) is back with a vengeance. 

2. The uses of history. Justice Alito seeks to show that the right to abortion is not deeply rooted in the nation’s history and traditions. But Justice Alito has to reckon with the fact that at the Founding and in the early republic the law did not prohibit contraception nor did it ban all abortions. At common law, before quickening (roughly 16 to 20 weeks into a pregnancy), it was not a crime to abort a fetus. Alito discusses Hale and Blackstone’s view that one could be prosecuted if an abortion resulted in a woman’s death. But the purpose of this doctrine seems to be protecting the life of pregnant women rather than protecting unborn life prior to quickening, for if the woman was not harmed, there was no crime at common law. 

Alito’s stronger argument is that from the Civil War era onwards, there was a successful campaign to criminalize abortion. States began to prohibit the practice throughout pregnancy, to increase criminal sanctions, and to criminalize the use and circulation of contraceptives and abortifacients. But there are problems in tying the meaning of the Constitution’s liberty guarantee to these laws if we look at the background conditions in which this campaign to restrict abortion was conducted (for example, the fact that women could neither vote nor hold office) and the kinds of arguments people advanced for banning abortion. 

The larger problem with Alito’s argument—and indeed, the entire Glucksberg approach—concerns why we think that tradition has normative authority. In general, we follow tradition because it reflects the accumulated wisdom of previous generations, so it is presumptively morally good, or at least morally acceptable. But if a tradition reflects something we think very unjust or inhumane, it loses its moral authority to guide us. For example, if a tradition arose to protect slavery or Jim Crow, one cannot use the mere fact that it is a tradition to justify it. 

The problem is that the history that Alito recounts—going back to the 13^th century—is deeply connected to the subordinate status of women, and to laws and practices that kept women subservient and denied them equal opportunities. Abortion laws were among many others that regulated women’s sexuality and autonomy, and the authors Alito quotes reflect the assumptions of their day. Therefore it is not clear why the Glucksberg test should have any legitimacy with respect to women’s sexual freedom, since it grounds the test for constitutional liberty in deeply unjust and inequitable practices. Put another way, a reason why women’s reproductive rights likely would not be deeply rooted in the Nation’s traditions is that traditionally the country was committed to keeping women from having very many rights. Conversely, it is no accident that reproductive justice claims start to get taken seriously as soon as women start to win a broad range of equal rights in American society. Indeed, abortion and contraceptive rights were key demands of the women’s movement in the 1970s. 

3. Originalism and Tradition. Dobbs is another example of how the conservative Justices’ use of originalism and tradition have tended to merge in practice. (See also the discussion notes concerning Bruen). From one perspective, Dobbs is not, strictly speaking, an originalist opinion. It does not decide whether abortion is constitutionally protected by looking to the original meaning of the Due Process Clause in 1791(5^th Amendment) or 1868 (14^th Amendment). Rather, it appears to be a doctrinal opinion that purports to apply the Court’s doctrine of implied fundamental rights in Glucksberg, and it looks to history and tradition to discover what those rights are.  It also accepts the doctrine of substantive due process, which many conservative originalists reject. Justice Thomas, for example, makes clear that in his view, the whole doctrine of substantive due process is inconsistent with originalism. 

At the same time, Alito emphasizes that there was no right to abortion in 1868 when the Fourteenth Amendment was adopted, which looks like an argument from original expected applications or original understanding. Justice Kavanaugh asserts that what is most important to him is that abortion was mostly criminalized in 1868 and remained so until the 1970s. 

Dobbs, like Bruen, suggests that the Court’s self-described originalist judges are not strongly distinguishing originalism from traditionalism. Conservative originalists like Justice Scalia have long championed something like Alito’s interpretation of Glucksberg, and several of the Court’s end-of-term decisions—joined or written by its originalist Justices—have invoked the idea of “history and tradition.”