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The review of abortion rights in the US: a return to fundamentals

Fachada do prédio da Suprema Corte, nos Estados Unidos.

Facade of the Supreme Court building, in the United States.

| Photo: Bigstock

) Assuming that the opinion leaked in Dobbs v. Jackson Women’s Health Organization by Judge Samuel Alito directs the majority of the Supreme Court to something similar, there are important implications for constitutional jurisprudence that go beyond Roe v. Wade. The opinion does not begin by analyzing the Court’s many previous abortion cases, but by asking how the right to abortion can be located in the Constitution. Alito bases his judgment on the words of the fundamental law and not on the precedents of the court itself, thus privileging the original meaning of our binding letter, rather than the Court’s previous glosses. Alito responds to the arguments they tried to substantiate Roe v . Wade in almost every conceivable provision of the Constitution, from the First to the Ninth Amendments, and shows why they are unfounded. He considers that the supposed right to abortion can be based on the word “freedom” in the Fourteenth Amendment, but maintains that this guarantee protects only “rights deeply rooted in the history and tradition of the nation”. Abortion obviously fails this test.

The opinion also identifies the correct reading of the Constitution with its meaning as enacted. It could be argued that the due process clause, in which the term “freedom” appears, was intended to trigger only procedural rights, and that any further investigation into the content of those rights for substantive purposes is therefore superfluous. But Judge Alito is careful to note that the same analysis of tradition would be required by granting Fourteenth Amendment privileges or immunities to all citizens, which clearly offers a source of substantive rights. Many scholars have argued that it protects freedoms that were deeply rooted at least at the time of enactment, and perhaps even rights that take deep root afterwards. But as the right to abortion is not so entrenched, this clause cannot provide a basis for it.

The careful analysis of the text of the opinion, therefore, represents not only the annulment of Roe, but also a radical change in the proper method of reasoning about the Constitution. What caught the eye in Roe was that failed to locate the right to abortion in the text of the Constitution or even in previous precedent. As law professor John Hart Ely said about Roe , “it is not constitutional law and almost does not seem to try to be”. Not surprisingly, Alito quotes Ely. However, Roe was also the culmination of decades of loose thinking about constitutional interpretation, expressed in cases that ignored the original meaning of the text and were driven by what judges considered good policy. If the Dobbs decision follows this draft opinion, its most important legacy will be the restoration of a more rigorous method of reasoning at the heart of constitutional law. And it represents a triumph for the conservative legal movement in its decades-long struggle to restore original meaning as the centerpiece of constitutional interpretation.

Alito’s opinion does not imply that the precedent becomes irrelevant. After showing that the Constitution, as originally enacted, does not include the right to abortion, Alito analyzes several factors that the Court has evaluated in deciding whether to annul Roe. However, even here, he emphasizes that the quality of reasoning from precedent to annulment remains critical. And this factor will lead the Court to consider the connection of the precedent with a plausible interpretation of the meaning of the Constitution.

It is true that Alito also emphasizes that the Court must protect the trust interests that have developed around precedents, even when it considers a particular precedent to be wrong. As Michael Rappaport and I have argued elsewhere, asserting precedent is not necessarily contrary to originalism. Following previous rulings was an established judicial method at the time of the Foundation and therefore may be consistent with an originalist interpretation of the Constitution. It would be nice if courts never made mistakes, but they do — and people who trust them shouldn’t suffer. But Alito is careful to note that the trust in question must be specific. It is not enough to argue that many people have grown accustomed to a Supreme Court decision and believed they have benefited from it in the past. They must bear the costs of annulment that outweigh the substantial benefits of following constitutional provisions that enjoyed a continental consensus.

Commentators are wrong to think that the ruling suggests that the right to same-sex marriage advertised in Obergefell is at risk. Entering a marriage creates specific dependency, including costly joint investments; individuals can change their behavior in light of the new abortion law without dissolving ties. Still, the Court may be more willing to overturn decisions that lack plausible originalist support and have not induced substantial and specific confidence. Decisions that allow racial preferences in higher education, for example, should not preclude reconsideration of the constitutionality of affirmative action when the Court decides the case in which Harvard is accused of having discriminated against Asians.

Beyond any particular case, however, Alito’s opinion brings a victory for the rule of law and sovereignty popular. A Court that relies solely on its own work, rather than periodically revisiting the people’s edifice for politics and liberty, becomes an elite oligarchy, not a faithful agent of citizenship.

John O. McGinnis is a contributing editor of the City Journal and professor of Constitutional Lawl.

©2022 City Journal. Published with permission. Original in English .

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