After the Supreme Court’s stunning leak last week, it is finally dawning on the public that Dobbs v. Jackson Women’s Health Organization will likely mark the end of constitutional protections for abortion rights. The Court’s decision to take up the case, coupled with its failure to even temporarily protect Texas women from an unconstitutional post-six-week abortion ban last fall, clearly signaled this outcome. Yet Roe’s core vulnerability lies not with the justices voting to strike it down. It derives from how the issue was framed in the first place—as a question of an individual’s “reproductive rights” and not one of the proper scope of government.
With a couple of exceptions (such as its prohibitions on “ex post facto” laws that criminalize conduct retroactively and “bills of attainder” that legislatively single out individuals), the original Constitution, before it was amended, contained no list of individual rights. The theory was that the very structure of government—a three-part federal system in which each branch checks the other two, and a competing panoply of independent state governments—would constrain humankind’s natural propensities to abuse power and thus invade individual liberties.
In “Federalist No. 51,” James Madison explained: “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The original constitutional government was accordingly structured to “oblige it to control itself,” a feature Madison deemed “essential to the preservation of liberty.”
Follow Madison’s logic here: The government’s structure is about constraining power, because constraining government power protects individual liberty.
Roe is also about protecting liberty, but from a different vantage point. It springs from the Fourteenth Amendment’s due-process clause. Due process is first and foremost a procedural protection that dates back to England’s Magna Carta in 1215. The idea is that a government cannot take life (via execution), liberty (via incarceration), or property (via a taking of private property for public use) without some sort of hearing. Roe and the legion of cases that preceded it—protecting basic family prerogatives like the right to educate one’s children and outlawing atrocities like government-forced sterilization—are reflections of the theory that “liberty” is not just about process. There are certain things that are so bound up in the concept of American liberty that government cannot touch them at all—even with a hearing. The sacred sphere of family life, including the decision of whether to bear children in the first place, wound up litigated and constitutionally analyzed as one of those places that’s off-limits to the government.
By inevitably jousting with America’s cultural predilection for misogyny, Roe dragged this notion of substantive due process into treacherous waters. In his draft Dobbs ruling, Justice Samuel Alito characterizes Roe as centered on “a woman’s right to control her own body,” the denial of which “prevents women from achieving full equality.” It’s as if women have a basket of goodies that we call “rights,” and those rights are pitched against those of an unborn fetus. In that game, women had the advantage for half a century. Now the other side is getting a decisive win.
The draft opinion thus reads like a “not so fast, gals” rebuke of women’s grasp for the upper hand. Alito undertakes a dubious discussion of “our Nation’s history and tradition” to determine whether access to pregnancy-termination care “is an essential component of what we have described as ‘ordered liberty.’” His conclusion that women didn’t have any such rights back in the day should come as no surprise.
“Until the latter part of the 20th century,” he quips, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” Alito stretches back to the 13th century in England—nearly five centuries before the Constitution was ratified—to note that if a pregnant woman was struck or poisoned when “the foetus be already formed and animated” and the fetus died, the death was considered a homicide. He then moves on to Sir Matthew Hale, who in 1673—more than 100 years prior to the formation of the United States—called abortion a “great crime.” (Hale was an English judge who had two women executed for witchcraft and endorsed marital rape.)
Alito eventually pivots to “the few cases available from the early colonial period corroborat[ing] that abortion was a crime,” and then to the 19th century, when the Fourteenth Amendment was ratified after the Civil War. “There were no scientific methods for detecting pregnancy in its early stages” at that point, he concedes. Nonetheless, “the vast majority of the States” criminalized abortion “until the day Roe was decided,” says Alito. Women have never had reproductive rights, in other words, so they should hardly get them now.
But if, instead of using an individual-rights framework, we were asking about government power, then Alito’s time travel back to the founding era should lead to the very opposite conclusion. The original Framers’ focus was not on the basket of goodies attached to a particular category of individual. It was on confining the bullying tendencies of those lodged in the powerful seat of government. The proper analytical lens for individual rights should not be on the power of the individual. It should be on the power of government—and its pressing need for restraint.
All Americans can understand the foundational notion that government should not get too powerful. It’s precisely why people became enraged over mask and vaccine mandates, and why the gun-rights lobby is so virulent. Under a government-focused theory of constitutional protections, the Supreme Court’s default posture should be relatively simple: If in doubt, keep uncertain powers out of government. Leave them with private individuals and their families.
In 1923, the Court in Meyer v. Nebraska considered the case of a man who was convicted of the crime of teaching German in a private parochial school. The Court struck the foreign-language ban down, noting that “his right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the [Fourteenth] Amendment.” Two years later, the Court rebuffed a state mandate that kids ages 8 to 16 attend public schools: “The fundamental theory of liberty upon which all governments in this Union repose,” it explained, “excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
Recall Madison: Liberty requires restraints on government power.
Meyer goes on to discretely list the spheres of life that states cannot invade under a government-centered theory of constitutional protections: “Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience.” The fact that government can articulate a reason for invading these sacred spaces—like prioritizing English—isn’t justification enough to aggrandize its power.
Remarkably, this list encompasses much of what Dobbs puts on the chopping block: the right to marry someone of another race or the same gender, the right to contraception, the right to reject state-mandated medical treatment, and yes, the right to say no to a state dictate that people with uteruses prioritize breeding over other life pursuits.
Keeping these choices out of the hands of politicians seems like a notion that any American could get behind.