Defending Dobbs: Ending the Futile Search for a Constitutional Right to Abortion

68 Pages Posted: 16 Aug 2022

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2022

Abstract

In Dobbs, the Supreme Court held that the Constitution does not confer a right to abortion and therefore overruled Roe v. Wade and its progeny. Democratic political leaders and their allies in the academy and the media have assailed Dobbs. These critics, however, have not defended Roe itself, in which a majority of Justices legislated their desired pro-choice policy result, then scrambled to identify some constitutional basis for it. The Justices asserted that a right to abortion was an element of a right of privacy derived from (1) First Amendment freedom of association; (2) the Third Amendment ban on quartering soldiers; (3) Fourth Amendment freedom from unreasonable searches and seizures; (4) various Fifth Amendment provisions; (5) the Ninth Amendment’s reservation of rights to the people; and (6) Fourteenth Amendment Due Process “liberty.” Scholars have added four more possible sources: the First Amendment Religion Clauses; the Thirteenth Amendment’s prohibition of “involuntary servitude;” the Fourteenth Amendment Equal Protection Clause; and the Nineteenth Amendment’s guarantee of women’s suffrage.

The Court in Dobbs rejected all of these increasingly desperate searches for a right to abortion in a Constitution that does not contain one. From a purely legal standpoint, the Court’s four-point reasoning was sound. First, the Constitution’s text is silent on abortion. Second, no one who drafted, ratified, or implemented the Fourteenth Amendment (or the Bill of Rights provisions incorporated as Due Process Clause “liberties”) thought they were conferring such a right. Third, abortion was not among those rights that were implicit because they were deeply rooted in America’s history and traditions. On the contrary, no federal or state constitution, statute, or common law recognized a right to abortion until a few states did so in the late 1960s. Fourth, the Constitution’s democratic structure left abortion to the political process.

Ultimately, the only possible legal basis for a right to abortion was stare decisis: The Court should adhere to its precedent in Roe and Casey, a 1992 case that hinged on a concurrence by three Justices who acknowledged that Roe was likely incorrect as a matter of constitutional law, substantially changed its legal analysis and rationale, and yet reaffirmed the right to abortion simply to avoid a public backlash. However, stare decisis is at its weakest in cases arising under the Constitution because the Court is bound by the document itself and has a special duty to rectify its previously mistaken interpretations, as it is practically impossible to reverse those decisions by amendment. The Court has no duty to follow cases that were egregiously wrong, poorly reasoned, unworkable, and causing legal and practical problems.

Accordingly, in Dobbs the Court properly focused on the Constitution itself and retreated from common law policymaking. Unfortunately, average Americans, politicians, pundits, and even lawyers rarely read Court opinions and instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. Thus, the current majority of Justices must illuminate the public about the Court’s true role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s concurrence and without widespread popular approval. Hence, its educational task will be formidable, and probably impossible.

Keywords: abortion, constitutional, Dobbs, law, privacy, rights

Suggested Citation

Pushaw, Robert J., Defending Dobbs: Ending the Futile Search for a Constitutional Right to Abortion (2022). Pepperdine University Legal Studies Research Paper No. 2022/11, Available at SSRN: https://ssrn.com/abstract=4190711 or http://dx.doi.org/10.2139/ssrn.4190711

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

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