Good summary, but your footnote about Justice Thomas should read "privileges OR immunities". Read the 14th Amendment. (And, of course, that the results based jurisprudence but from the supposedly moderate right analysis that you admirably exemplify in this post leads to mush just underscores that Justice Thomas's approach is correct.)
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.
Thomas is right. What is the harm of giving legislatures the authority to pass wildly popular legislation protecting marriage equality, birth control, etc.?
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.
Competing rights. The right of the unborn to live. The right of the mother not to be unduly burdened in her bodily autonomy. Could you (legally) force someone to give up a kidney to save someone else’s life? If you could kill one innocent person to save five innocent more, would you do it? All interesting questions that should be taken into account when deciding which way to go on a judicial abortion decision.
It’s long seemed to me the competing rights understanding is the correct way to think about abortion policy. You don’t have to have religious beliefs to think that fetal life is human life. Following the science can lead to that conclusion and the gestation points where many might see the balance shift.
Those other issues have some deeply rooted past (except birth control because the technology hadn’t been invented), but they don’t really interfere with the serious rights of others. Gay marriage hasn’t hurt other people unless possibly expanding rights to prohibit those immersed in the deeply rooted, usually religious past, from choosing not to provide services widely available elsewhere, as in the rights to a cake.
How to weigh protecting fetal human life against the imposition of costs to women in doing that is a difficult balancing act. Do judges or politicians have some divine wisdom for making that or are they just as likely as others to see it in different ways? If politicians get to decide, then abortion becomes a never ending issue of those who feel strongly trying to get politicians elected that agree with their views.
I prefer some more accepted resolution of the issue. I think that could come from having voters decide directly within a context that allow ranked policy preference voting to get the one with the greatest support/least disagreement. I’d expect that would result in something similar to European countries where early abortions on demand are legal with some exceptions after that. You could schedule a voter say every 10 years to reaffirm what the electorate most prefers.
Didn't Obergfell also hold that gay marriage bans violate the Equal Protection Clause? Court could easily pull back on creating new rights via substantive due process and reaffirm Obergfell on equal protection clause grounds because gay marriage bans target a minority group that can't protect itself through the legislative process or elections (unlike, for example, women).
"As a medical procedure, abortion was widespread in Colonial and 18th-century America. By using more or less safe techniques, midwives and medical practitioners performed many types of operations on their patients. The woman could easily die, of course; but when she sought an abortion, no social, legal or religious force would have blocked her."
The equal protection clause can get to the same result for the gay cases, reasoning that gays aren't getting the same legal benefits as straights. Obergefell (protecting gay marriage) rested on both substantive due process and equal protection, so scrapping the former still leaves the latter. Lawrence (protecting gay sex) declined to reach equal protection question, with O'Connor concurring that equal protection was enough to reach the same result. The earlier Romer v Evans struck down a Colorado law singling out gays on equal protection grounds. Contraception is probably doomed as a right, but would any state even try to restrict that nowadays?
One of the justifications that Alito provided for overturning Roe was the poor "...quality of [the Court's] reasoning". (see page 53 ff. of Alito's opinion)
I can't tell the future, but if the Court holds to that principle, then Obergefell is toast. Frankly, I'm skeptical that the votes are there to make this happen, principally because examining the "quality of the reasoning" of prior decisions may, in their judgment, be too large a Pandora's Box to open.
Good summary, but your footnote about Justice Thomas should read "privileges OR immunities". Read the 14th Amendment. (And, of course, that the results based jurisprudence but from the supposedly moderate right analysis that you admirably exemplify in this post leads to mush just underscores that Justice Thomas's approach is correct.)
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.
Thomas is right. What is the harm of giving legislatures the authority to pass wildly popular legislation protecting marriage equality, birth control, etc.?
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.
Maybe the best single analysis I have read of the Dobbs decision
Competing rights. The right of the unborn to live. The right of the mother not to be unduly burdened in her bodily autonomy. Could you (legally) force someone to give up a kidney to save someone else’s life? If you could kill one innocent person to save five innocent more, would you do it? All interesting questions that should be taken into account when deciding which way to go on a judicial abortion decision.
It’s long seemed to me the competing rights understanding is the correct way to think about abortion policy. You don’t have to have religious beliefs to think that fetal life is human life. Following the science can lead to that conclusion and the gestation points where many might see the balance shift.
Those other issues have some deeply rooted past (except birth control because the technology hadn’t been invented), but they don’t really interfere with the serious rights of others. Gay marriage hasn’t hurt other people unless possibly expanding rights to prohibit those immersed in the deeply rooted, usually religious past, from choosing not to provide services widely available elsewhere, as in the rights to a cake.
How to weigh protecting fetal human life against the imposition of costs to women in doing that is a difficult balancing act. Do judges or politicians have some divine wisdom for making that or are they just as likely as others to see it in different ways? If politicians get to decide, then abortion becomes a never ending issue of those who feel strongly trying to get politicians elected that agree with their views.
I prefer some more accepted resolution of the issue. I think that could come from having voters decide directly within a context that allow ranked policy preference voting to get the one with the greatest support/least disagreement. I’d expect that would result in something similar to European countries where early abortions on demand are legal with some exceptions after that. You could schedule a voter say every 10 years to reaffirm what the electorate most prefers.
Didn't Obergfell also hold that gay marriage bans violate the Equal Protection Clause? Court could easily pull back on creating new rights via substantive due process and reaffirm Obergfell on equal protection clause grounds because gay marriage bans target a minority group that can't protect itself through the legislative process or elections (unlike, for example, women).
Great article Mickey. What I wonder is in this article: "Abortion decision cherry-picks history – when the US Constitution was ratified, women had much more autonomy over abortion decisions than during 19th century" See here: https://theconversation.com/abortion-decision-cherry-picks-history-when-the-us-constitution-was-ratified-women-had-much-more-autonomy-over-abortion-decisions-than-during-19th-century-185947 Here is a quote:
"As a medical procedure, abortion was widespread in Colonial and 18th-century America. By using more or less safe techniques, midwives and medical practitioners performed many types of operations on their patients. The woman could easily die, of course; but when she sought an abortion, no social, legal or religious force would have blocked her."
The equal protection clause can get to the same result for the gay cases, reasoning that gays aren't getting the same legal benefits as straights. Obergefell (protecting gay marriage) rested on both substantive due process and equal protection, so scrapping the former still leaves the latter. Lawrence (protecting gay sex) declined to reach equal protection question, with O'Connor concurring that equal protection was enough to reach the same result. The earlier Romer v Evans struck down a Colorado law singling out gays on equal protection grounds. Contraception is probably doomed as a right, but would any state even try to restrict that nowadays?
One of the justifications that Alito provided for overturning Roe was the poor "...quality of [the Court's] reasoning". (see page 53 ff. of Alito's opinion)
I can't tell the future, but if the Court holds to that principle, then Obergefell is toast. Frankly, I'm skeptical that the votes are there to make this happen, principally because examining the "quality of the reasoning" of prior decisions may, in their judgment, be too large a Pandora's Box to open.