A retro reading of the Constitution imperils many rights beyond abortion
Opinion by Kenji Yoshino
As astute commentators have noted, the draft opinion in Dobbs vs. Jackson Women’s Health Organization not only seeks to overrule Roe vs. Wade, but might also someday threaten other decisions like Obergefell vs. Hodges, which secured the right to same-sex marriage. What might be less evident is that the draft opinion has already undermined Obergefell by changing that case’s approach to recognizing unwritten rights in the Constitution.
The right to abortion is what’s known as an “unenumerated” right, meaning that it has constitutional stature even though no text in the Constitution — short of the abstract “liberty” protected by the Fourteenth Amendment — protects it. The idea of such unwritten rights may seem puzzling, but it’s well-established in our constitutional system.
The 9th Amendment explicitly acknowledges their existence, stating that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Supreme Court has held that the right to travel across state lines and the right to vote (among many, many others) are constitutional rights even though they’re not specified in the text. So the question is not whether unwritten rights will be recognized, but which. And that of course requires the court to tell us how it will distinguish what’s in from what’s out.
The Dobbs draft opinion takes a remarkably stingy approach to that question. It relies on the 1997 case of Washington vs. Glucksberg, which held that the Constitution did not protect the right to physician-assisted suicide. That opinion said that unwritten rights would be recognized only if they were “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” This approach effectively freezes an 18th or 19th century understanding of rights in place. The draft opinion’s application of this test doomed the right to abortion.
This approach is bizarre because it ignores the changes more recent cases have made to the Glucksberg test. Most prominently, the Obergefell case in 2015 not only made marriage equality the law of the land, but also transformed the role of tradition in discerning unwritten rights. The court rejected the idea that the rights inquiry could be “reduced to any formula.” It instead embraced an approach that “respects our history and learns from it without allowing the past alone to rule the present.” This shift allowed the justices to recognize same-sex marriage as a fundamental right.
As I wrote at the time, Obergefell’s innovation was that it struck the chains of history from the inquiry of which unwritten rights would be recognized. While it did not explicitly overrule the 1997 case, it was manifestly inconsistent with it. As Chief Justice John G. Roberts Jr.’s heated dissent in Obergefell observed, “the majority’s position requires it to effectively overrule Glucksberg.”
Without even addressing this aspect of Obergefell, the Dobbs draft opinion seeks to reinstate the shackles of history on the unenumerated rights inquiry. The consequences of that shift cannot be overstated. Will the six conservative justices deem same-sex marriage to be “deeply rooted in this Nation’s history and traditions”? What about the right to same-sex sexual intimacy recognized in 2003? The right to contraception recognized in 1965? It would be foolish to assume all these rights will be extinguished, as many factors will go into the justices’ decision making. It would be even more foolish, however, not to see that they are now all freshly imperiled.
Perhaps most galling of all, the draft opinion tries to pretend away this obvious implication of its analysis. It soothingly states: “Our decision concerns abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” It’s the kind of language that the court has used in cases like Bush vs. Gore or the most recent case upholding affirmative action, where the ruling’s language suggests it is a ticket good only for one day.
Even in those earlier cases, it’s an eyebrow-raising move: Should the court, as a forum of principle, be allowed to limit the application of its own rulings? But when an opinion revises a test that must be applied to future cases, it’s downright incoherent to say that the decision has no bearing on other topics. The resurrected idea that unenumerated rights must be “deeply rooted in this Nation’s history and tradition” is obviously not limited to abortion alone.
Revered though it is and should be, our Constitution does not have a good mechanism for updating itself. The amendment procedures in Article 5 are simply too onerous. Particularly in our polarized times, the idea that new rights could be enshrined in the Constitution by supermajorities of the voting public seems wildly utopian, especially when those rights are seen as protecting vulnerable groups.
The Constitution will gradually lose the support of the nation it governs if the court binds its interpretation of unenumerated rights, or its interpretation of abstract provisions like “liberty,” so closely to the past. The draft opinion is not just an assault on abortion, or on same-sex marriage, or on contraception. It’s an assault on the future of the Constitution.
Kenji Yoshino, a professor of constitutional law at New York University, is the author of “Speak Now: Marriage Equality on Trial” and co-author of the forthcoming “Say the Right Thing: How to Talk About Identity, Diversity, and Justice.”