It provides the rationale for reading into the Constitution a right to life for the unborn.
In its landmark Dobbs v. Jackson decision overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, Justice Brett Kavanaugh said that the Constitution “neither outlaws abortion nor legalizes abortion… The Constitution is therefore neither pro-life nor pro-choice.”
That’s the decision of the Court today. However, one of the ironies of history may be that, 25 or 50 years from now, a new Supreme Court might cite the left-wing dissent in Dobbs to find that the Constitution implicitly prohibits abortion as a violation of the the unborn child’s Constitutional right to life, which is protected under the 14th Amendment.
That may sound farfetched, but not if you take the Dobbs dissent seriously—and not if you realize that new currents in conservative jurisprudence—Adrian Vermeule’s common good Constitutionalism, for instance—are moving beyond originalism to achieve a more results-oriented approach to judging.
The ‘Living Constitution.’ In Dobbs, the Court noted that there is no specific or enumerated right to abortion. Nor is there an implicit or unenumerated right to abortion. Why? Because, as the Court points out, abortion is neither “deeply rooted in [our] history and tradition” nor “essential to this nation’s ‘scheme of ordered liberty.'”
In fact,
until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right…
By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.
The left-wing Dobbs dissenters don’t dispute these facts. Instead, they argue that the Constitution is a living document that evolves to reflect changing societal norms and expectations.
The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time.
The Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.
The Constitutional Right to Life. Yes, indeed, the world changes! And what if it changes in a more conservative direction, toward an understanding that the unborn child is a person wholly deserving of Constitutional protections, including that most basic Constitutional protection: the right to life?
What, then, is to stop a more results-oriented Court, with a majority of “common good Constitutionalists,” from finding this right in the Constitution?
After all, as the left-wing Dobbs dissenters observe, rights evolve in their scope and meaning, and the Court has an obligation to apply key Constitutional principles “in new ways [that are] responsive to new societal understandings and conditions.”
Advances in medical science continue to elucidate the humanity of the unborn. And surely, the history of America is one of increasing inclusion and the expansion of rights to previously marginalized members of our community.
Blacks, women, gays, the unborn—all have been recognized as members of the American family worthy of Constitutional and civil rights protection.
The Court has seen to it that Constitutional justice was done for blacks, women, and gays; it has yet to get there for the unborn, but it will in time. And the far-left Dobbs dissenters have shown us the way.
Feature photo credit, courtesy of CNN, (L-R): Far-left Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan have shown exactly how a future Supreme Court can read into the Constitution a new right to life for the unborn.
