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During oral argument in Dobbs v. Jackson Women’s Health Organization – about Mississippi’s 15-week abortion ban – Supreme Court Chief Justice John G. Roberts’s questions indicated that he was searching for a way to uphold Mississippi’s law while leaving Roe v. Wade intact. But Roberts has already penned the most convincing argument for overturning Roe, in his dissenting opinion in the Court’s same-sex marriage case.
In Obergefell v. Hodges, the Court held that the due process clause of the Constitution’s 14th Amendment – the same clause on which Roe relied – contains a right of same-sex marriage. Justice Roberts wrote a blistering dissent, ending with the memorable lines: “If you are among the many Americans . . . who favor expanding same-sex marriage, by all means celebrate today’s decision. . . . But do not celebrate the Constitution. It had nothing to do with it.”
The bulk of Roberts’s dissent was a primer for the Court about how its precedents structure a due process inquiry: The clause forbids deprivations of “liberty” without due process, but leaves it to the Court to name the particular liberties protected. Quoting an earlier case, Roberts cautioned his colleagues that “substantive due process” analysis is the “most sensitive category of constitutional adjudication” rendering the Court “most vulnerable and . . . nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” He underscored just how wrong the Court’s “own conception of liberty” had proved in the past, citing the Dred Scott decision upholding the rights of slaveholders.
Most importantly, Roberts reminded the Court that its leading substantive due process precedents require any claimed right to be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” In short, legal history matters enormously. There can be no “right” that blatantly contradicts the laws widely embraced by states at the time the Constitution or the 14th Amendment was ratified.
But pre-Roe abortion law was a sea of state prohibitions. From the founding of the United States to 1973, when Roe was decided, state laws protected unborn human lives from the point that science could determine with certainty that they were alive. Thus, before the early 19th century, common law protected life from “quickening,” when the mother could feel movement.
After scientists discovered the ova and fertilization, abortion laws changed to meet the new scientific standard. Thus, by1868, when the 14th Amendment was ratified, 30 of 37 states had legislative protections for unborn life, with all but three protecting life from conception. Over the next 28 years, the remaining seven states also adopted laws protecting unborn life. Even when antibiotics rendered abortion much safer from about the1940s forward, state laws continued to protect unborn life in the vast majority of circumstances. Immediately before Roe, more than 150 bills attempting to allow more abortion failed. And each year since Roe, hundreds of pro-life bills have been introduced; at least 1,327 have become law.
Roberts exhorts his colleagues to resist the siren song of “delivering social change,” and to “exercise humility and restraint in deciding cases according to the Constitution and law,” no matter how long the public has debated the issue. “In our democracy” he writes, “debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will.” In fact, he concludes, the public will grant the Court “legitimacy” only if they perceive that it has “decided cases according to the Constitution and law.”
Same-sex marriage is not an issue in Dobbs, but Roberts’s roadmap from Obergefell is a sure guide for a majority of the Court to reverse Roe on the foundations of respect for its own precedent and separation of powers. Since the foundation of our country, up to the moment the case was handed down, states protected unborn life from abortion in the vast majority of cases, and continued to try even when the Court had almost completely tied their hands. Roberts’s Obergefell dissent is right: If history is ignored, “No matter the Court’s profession of its own discipline in identifying fundamental rights, what a judge is too often ‘discovering,’ whether or not he is fully aware of it, are his own values.”
Helen Alvaré is the Robert A Levy Chair and professor of law at the Antonin Scalia Law School at George Mason University.
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