I’m going to put this in schematic form -- because, good Lord, you must be sick of reading essays about Dobbs, the big recent Supreme Court abortion decision.
1. The Challenge: Suppose you're Justice Alito. With a majority behind you, you believe Roe and Casey, the two previous big right-to-abortion decisions, were wrong. Deciding whether and when to ban abortion is an issue for the democratically elected legislatures. (Don't fight the hypothetical!) But you'd like to say this without calling into question a whole line of other cases seemingly also based on the idea of a right to "personal autonomy” or “privacy, ” including the right to birth control, gay sex and gay marriage. And you want to do it in a principled way -- not just by assuring readers "Hey, we're not touching those cases," but by laying out a reason why you're not touching them.
2. The legal environment: There's no right to abortion listed in the Constitution, the way freedom of speech and the right to a jury trial are listed. So how would the Constitution protect such an "unenumerated right?” One argument holds that it's included in the 14th Amendment's protection against deprivation of "life, liberty, or property, without due process of law." One answer to this argument—the Justice Thomas answer—is, in effect, 'Bullshit!’ The due proces clause, in this view, concerns ... well, process. It says you can't be imprisoned without a trial, for example. It doesn't say there are some unlisted rights that states can never take away from you -- so-called "subtantive due process."
Thomas' answer clearly won't meet the Alito Challenge. It would knock out the unlisted rights to gay marriage, gay sex and contraception. **
In search of a more permissive answer, courts have sometimes decided that unlisted rights might be covered if they are “deeply rooted in this Nation’s history and tradition.” This — the so-called Glucksberg test — yields no solution for Alito either (as Dahlia Lithwick and Neil Siegel forcefully point out). It might knock out the abortion right (Alito offers a long history of abortion laws to back this claim). But again it would also knock out all those other rights Alito wants to leave in place. Gay marriage is deeply rooted in the nation's history and tradition?
3. The Trick: But there's another trick in the lawyer's bag -- the old gambit of moving up a notch in generality. In this view. those other "rights" (gay marriage etc.) aren't separate controversies—they all invoke a more general right to privacy and autonomy. And the right to individual autonomy is arguably rooted in tradition.
4. Victory is in sight! At this point, a solution to Alito's dilemma ever-so-briefly heaves into view. He could find that all those previous rights were in fact examples of an unlisted right to autonomy. And abortion is part of autonomy too! But what distinguishes the abortion case -- as Alito keeps reminding us --is the presence of another, at least Constitution-adjacent interest: The fetus' "potential life." So it's right vs. right, if you will. Alito could argue that in that case the elected legislature should be allowed to strike the appropriate balance, within limits. Here he is on page 31 of Dobbs:
"[T]he people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” … Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated."
It could all work! Gay marriage is constitutionally protected autonomy. Abortion is constitutionally protected autonomy. But only the latter bumps up against another protected interest, that of the "unborn human being." So while gay marriage (Right vs. No right) stands, abortion gets kicked over to the democratic branch for the conflict to be resolved . You could call it the Right v. Right Punt. It meets the Alito Challenge (of upholding the gay marriage and other privacy cases, but not abortion, on a principled basis).
5. The Obfuscation: Alito hints at this resolution. But he doesn't stick to it. He seems to abandon it in passages where he pisses on the credibility of the gay marriage "right" entirely ("none of these rights has any claim to being deeply rooted in history""*** -- as if he were applying the Glucksberg test again). In a key fudge paragraph on page 32 of the Court's opinion, he seems to suggest that the privacy/autonomy right that was enforced in those earlier decisions, if it's not just crap ab initio, is somehow vaporized by the "critical" presence of a fetal interest—so there’s actually no privacy/autonomy right at all in abortion cases.
Which is it? There actually seem to be three possibilities. Is there
a) no privacy/autonomy right to abortion, because it fails the Glucksberg test (calling into question the gay/birth control cases--just as Lithwick/Siegel say);
b) no privacy/autonomy right to abortion because somehow even deeply rooted rights mysteriously disappear when they conflict with other rights. (How convenient!) The problem with such fortuitous constitutional alchemy is that it makes little sense. Does any other right disappear when confronted with another right (or a mere "interest")? Does the right to an impartial jury trial just vanish when it conflicts with the right of the press to report about a case in a way that might bias a jury? Or do courts try to balance the two rights? Answer: The latter. Yet we're supposed to believe that what would be a right to autonomy and bodily integrity (eg if the government tried to remove your kidney) becomes a nothing when an embryo shows up on the scene;****
c) yes, a privacy/autonomy right to abortion--but legislatures get to balance it against other rights, (unlike the gay sex, etc. cases where there is no big interest to balance against).
I obviously think Alito should have firmly picked (c). (A) doesn't solve his Challenge. (B) seems nonsensical. (C) solves it. But I understand his reluctance. Traditionally, when the justices discover a right, it means a message effectively gets sent to the legislature--"Thanks, we'll take it from here." If rights need to be balanced against other rights, justices just naturally assume they'll do the balancing. That's why the discovery of more rights gradually expands the purview of the lawyers and courts, as landmark decisions suck subject after subject out of the democratic sphere.
Finding a conflict of "rights" but then deciding that the legislature, not the courts, should figure out how to weigh them would be a radical and unsettling doctrine for the entire bar. Better to reach the same result—and preserve judicial status—by finding no right at all, even if that validates liberal charges that many other rights might follow abortion into the dustbin.
Another way to put it: Allowing voters and elected politicians to resolve conflicts between constitutional rights—including "unenumerated" ones the Court has labored mightly to discover—would be a powerful disincentive to discovering those rights in the first place. True, judges would still retain the authority to intervene if a legislature went way to far in one direction or another (e.g., handmaid-style forced pregnancies at one end and post-partum abortions at the other, perhaps). But in between those extremes would be a large, Alito-like area for the legislature to reach its own accommodation.*****
For the judges, it wouldn’t be the same. What's the point of declaring new rights if you can't immediately start making the laws that affect those rights--complete with trimesters or "viability" lines, etc? But preserving the electorate's ability to decide on the right balance of fairly important rights is what, at bottom, the Dobbs decision is about, no? Because another “unenumerated” right is democracy.
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** — Thomas suggests maybe they could be upheld under another Constitutional provision, the “privileges and immunities” clause.
***— The import of this sentence depends on what the meaning of “these” is. I’m reading it to include all the “appeals to a broader right to autonomy,” not just the horribles (prostitution, drug use) Alito has just listed. YMMV. Pretty crucial sentence to leave vague!
****— Even Alito slips up on occasion and talks about "the abortion right".
*****—Often via compromise, which could increase voter willingness to live with the result while they continue to campaign for their side (in contrast to what happened after Roe).
Undermining "substantive due process" was exactly the point of the Alito/Thomas one-two punch in Dobbs which is why Thomas assigned it to Alito as the senior Justice in the original 5 vote majority before Roberts gave up his Quixotic quest to keep Roe in play. Thomas wanted to write a concurrence that made the case for going even farther down that road. There are possibly four votes right now to substantially revise it (Thomas, Alito, likely Gorsuch, maybe Barrett). Roberts is a lost cause too wedded to the whole concept of rights as being secured by process rather than legislation, as well as too concerned about the Court's 'reputation', i.e. whether the elite media and others go flaming bonkers over rulings. Kavanaugh is probably on the fence for the same reason but less concerned about liberal reactions. Thomas might even be able to persuade one of the more fair minded liberals (i.e. Kagan) that 'privileges or immunities', aka a position that recognizes rights as pre-existing government and only secured by government action, is a firmer footing for decisions like recognizing same-sex marriages.
I don’t think your solution is sensible. If two actual constitutional rights are in tension why is the default to send the issue back to the legislature? Courts are in the business of devising balancing principles. They do it all the time. Why in this instance would they kick it away? And as a practical matter if the legislature flinches, as it often does, won’t the issue find its way back one way or another? Even if legislatures do not flinch passions will remain high and legal challenges will continue.
Your “A” says there is no right to abortion BECAUSE the history test fails. But isn’t that putting the wrong way about? There is no history test in the Constitution that acts as a safety valve. It is just another contrivance in the background and in the foreground there is the Constitution itself I think Thomas’s answer might be there is no right because it is not in there. Then go from there.