Pro-lifers Need the Unvarnished Truth About the Dobbs Decision
Jul 8, 2022 by David Fowler
Conservatives applauded Justice Samuel Alito’s recent opinion in the Dobbs case holding that there was no “right to abortion” in the Fourteenth Amendment’s Due Process Clause and reversing the holding in Roe v. Wade. The result was correct, but a constitutional law professor friend confirmed my assessment that “the majority cheated.” Here is why. And you can read the very short opinion that I would have written if the goal was to uphold the Constitution as written.
The professor, who has taught constitutional law for almost three decades at prestigious law schools, was responding to my comment about footnote 8 in Justice Breyer’s dissenting opinion (footnotes are important!). I won’t stress you with trying to decipher the footnote in full, but the premise (which is correct) is that the majority could have focused on whether the Court’s prior decisions had (A) “underrated the State’s interest in fetal life” or (B) “overrated a woman’s constitutional liberty interest in choosing an abortion.”
Then Breyer began to nail the majority with these words: “The majority here rejects the first path, and we can see why. Taking that route would have prevented the majority from claiming that it means only to leave this issue to the democratic process—that it does not have a dog in the fight.”
In other words, by not focusing on the state’s interest in life, the justices could do like Pilate in the trial of Jesus—wash their hands of having to answer the “profound moral question” that Alito said abortion presented about human life.
Breyer finished driving the nail home with these words: [D]oing so [taking the first route] might have suggested a revolutionary proposition: that the fetus is itself a constitutionally protected ‘person,’ such that an abortion ban is constitutionally mandated. The majority therefore chooses the second path, arguing that the Fourteenth Amendment does not conceive of the abortion decision as implicating liberty.”
In other words, Alito chose to examine whether “abortion” was a right under the word “liberty” found in the Due Process Clause. That clause says not state “shall . . . deprive any person of life, liberty, or property, without due process of law.”
Alito did so because if the Court had focused on the state’s interest in life, it would have had to determine if the unborn were “persons” to whom due process was due. At common law, the answer to that question is clear: YES! That is why the Court focused on the word “liberty” and whether it entailed “abortion.”
While Alito, Gorsuch, and Barrett might have been willing to take the first route and go there, Justice Kavanaugh made it clear in his concurring opinion that he would not do anything that would eliminate the rest of the Court’s sexual libertine agenda based on human autonomy.
Therefore, I presume Alito wrote the opinion the way he did to get Kavanaugh’s vote and reach five for overturning Roe. For that reason, I fear Kavanaugh has become this Court’s version of Justice Kennedy, for whom he served as a law clerk. The Constitution rests in his hands even as it did in Kennedy’s.
Had the majority wanted to construe the text of the constitutional provision at issue, the opinion could have been very short. Here is the rather blunt opinion I would have written to reverse Roe:
Roe was overturned, but as demonstrated, our Constitution has not been restored to its original text and its meaning by anything Alito wrote in Dobbs.
That is why my law professor friend concluded his email to me with these words,
How much longer, the professor is asking, will the pro-life community allow the constitutional “cheating” in Dobbs to continue?
I don’t know, but it could be another fifty years if we won’t know what Dobbs did or, more accurately, did not do. Battle plans drawn on poor intelligence usually prove fatal.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
The professor, who has taught constitutional law for almost three decades at prestigious law schools, was responding to my comment about footnote 8 in Justice Breyer’s dissenting opinion (footnotes are important!). I won’t stress you with trying to decipher the footnote in full, but the premise (which is correct) is that the majority could have focused on whether the Court’s prior decisions had (A) “underrated the State’s interest in fetal life” or (B) “overrated a woman’s constitutional liberty interest in choosing an abortion.”
Then Breyer began to nail the majority with these words: “The majority here rejects the first path, and we can see why. Taking that route would have prevented the majority from claiming that it means only to leave this issue to the democratic process—that it does not have a dog in the fight.”
In other words, by not focusing on the state’s interest in life, the justices could do like Pilate in the trial of Jesus—wash their hands of having to answer the “profound moral question” that Alito said abortion presented about human life.
Breyer finished driving the nail home with these words: [D]oing so [taking the first route] might have suggested a revolutionary proposition: that the fetus is itself a constitutionally protected ‘person,’ such that an abortion ban is constitutionally mandated. The majority therefore chooses the second path, arguing that the Fourteenth Amendment does not conceive of the abortion decision as implicating liberty.”
In other words, Alito chose to examine whether “abortion” was a right under the word “liberty” found in the Due Process Clause. That clause says not state “shall . . . deprive any person of life, liberty, or property, without due process of law.”
Alito did so because if the Court had focused on the state’s interest in life, it would have had to determine if the unborn were “persons” to whom due process was due. At common law, the answer to that question is clear: YES! That is why the Court focused on the word “liberty” and whether it entailed “abortion.”
While Alito, Gorsuch, and Barrett might have been willing to take the first route and go there, Justice Kavanaugh made it clear in his concurring opinion that he would not do anything that would eliminate the rest of the Court’s sexual libertine agenda based on human autonomy.
Therefore, I presume Alito wrote the opinion the way he did to get Kavanaugh’s vote and reach five for overturning Roe. For that reason, I fear Kavanaugh has become this Court’s version of Justice Kennedy, for whom he served as a law clerk. The Constitution rests in his hands even as it did in Kennedy’s.
The ‘Textualist’ Opinion That Should Have Been Written
Had the majority wanted to construe the text of the constitutional provision at issue, the opinion could have been very short. Here is the rather blunt opinion I would have written to reverse Roe:
This Court is asked to determine if the word “liberty” in the Fourteenth Amendment includes the right of a woman to hire another person to essentially assassinate her living child while in the womb. In Roe v. Wade and its progeny, the Court said this commercial transaction was the exception to the universal law of all civilized nations prohibiting hiring assassins or murder-for-hire plots.
To determine the meaning of the word “liberty,” this Court must look to common law, which is the rule of interpretation we have applied since our founding. That is because the common law is the Constitution’s foundation. We have even said the common law is “the nomenclature” known to our Founders and the people at the time the Constitution was adopted. To understand that common law, we routinely rely on the Commentaries of the Laws of England written by William Blackstone, who we have called the “preeminent expositor” of the common law in the founding generation.
The language in the Fourteenth Amendment’s Due Process Clause is identical to that found in the Fifth Amendment, and there is nothing in our history to indicate that the Fourteenth Amendment changed the meaning of any of the words used in the Fifth Amendment or were meant to mean something different from the Fifth. So, the only question is what did “liberty” mean at common law.
According to William Blackstone, “[P]ersonal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”
Abortion has absolutely nothing to do with what the word “liberty” in the Fourteenth Amendment means. That is because no woman is compelled by the state to go to any doctor or forbidden to leave the office of any doctor. Therefore, there can be no so-called “right to abortion” within the clear meaning of the word “liberty.” Roe v. Wade is be reversed.
To determine the meaning of the word “liberty,” this Court must look to common law, which is the rule of interpretation we have applied since our founding. That is because the common law is the Constitution’s foundation. We have even said the common law is “the nomenclature” known to our Founders and the people at the time the Constitution was adopted. To understand that common law, we routinely rely on the Commentaries of the Laws of England written by William Blackstone, who we have called the “preeminent expositor” of the common law in the founding generation.
The language in the Fourteenth Amendment’s Due Process Clause is identical to that found in the Fifth Amendment, and there is nothing in our history to indicate that the Fourteenth Amendment changed the meaning of any of the words used in the Fifth Amendment or were meant to mean something different from the Fifth. So, the only question is what did “liberty” mean at common law.
According to William Blackstone, “[P]ersonal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”
Abortion has absolutely nothing to do with what the word “liberty” in the Fourteenth Amendment means. That is because no woman is compelled by the state to go to any doctor or forbidden to leave the office of any doctor. Therefore, there can be no so-called “right to abortion” within the clear meaning of the word “liberty.” Roe v. Wade is be reversed.
The Grim but Real Truth About Dobbs
Roe was overturned, but as demonstrated, our Constitution has not been restored to its original text and its meaning by anything Alito wrote in Dobbs.
That is why my law professor friend concluded his email to me with these words,
The opinion … is inherently unstable. If sound reasoning were required of the Court (its’ not), I would say that this state of play cannot last. Roe was a farce. It lasted fifty years, so…
How much longer, the professor is asking, will the pro-life community allow the constitutional “cheating” in Dobbs to continue?
I don’t know, but it could be another fifty years if we won’t know what Dobbs did or, more accurately, did not do. Battle plans drawn on poor intelligence usually prove fatal.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
