The leaked draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that the Supreme Court is poised to finally overturn Roe v. Wade (1973). While the fight for legal protection of the unborn will continue and even intensify, it is undeniable that the demise of Roe would be an improvement over the status quo and a true victory—at least in the “end of the beginning” sense. Who deserves credit for this victory? First and foremost, the pro-life movement. Instead of retreating into obscurity following Roe, pro-lifers grew a movement, captured a political party, and forced it to make abortion a top priority in the appointment of judges. Credit is also due to the mainstream conservative legal movement, which includes and is led by many committed pro-lifers for whom overturning Roe v. Wade was always a top priority. Despite its many shortcomings and failures (which this blog routinely highlights), there can be no denying that the conservative legal movement may have finally delivered the result it has promised for decades. But what credit do we owe originalism, the official ideology of the conservative legal movement? Based on Justice Alito’s draft majority opinion, the answer seems to be nothing. Originalism will not have played any meaningful role in overturning Roe.
As other commentators have observed, Justice Alito’s draft opinion is not an originalist decision. Most of the opinion is focused on demolishing the notoriously bad reasoning of Roe without proposing an alternative interpretive framework. Justice Alito noticeably does not engage in hallmarks of originalist analysis, such as convoluted semantic games or myopic historical theorizing about the original public meaning, as typified in a case like District of Columbia v. Heller (2008). History obviously features prominently in the opinion, but the historical discussion is not limited solely to a consideration of the abortion laws in place when the Fourteenth Amendment was ratified. That is obviously part of the picture (as the appendix to the opinion demonstrates), but Justice Alito discusses the 1868 context within a more complete historical analysis beginning with the English Common Law and continuing through the Twentieth Century. This is because the framework for Justice Alito’s reasoning is not whether the original public meaning of the Fourteenth Amendment (or any other constitutional provision) created a right to abortion. Instead, the court evaluates the question under the test set forth in Washington v. Glucksburg (1997), which asks whether a claimed unenumerated constitutional right is “deeply rooted in the Nation’s history and tradition” and “fundamental to our concept of constitutionally ordered liberty”.
The point here is not to deny that there are originalist reasons for overturning Roe and Casey. Rather, Justice Alito’s opinion shows that originalism is simply not necessary to overturn those precedents. A non-originalist conservative legal movement could have just as easily obtained the same result with the same (or better) reasoning. The likely result in Dobbs also shows the failure of originalism’s much-vaunted “neutral” hermeneutic to controversial jurisprudential questions. It is clear that even a stridently originalist opinion would not have attracted more votes, not even from such staunch originalists as Justices Kagan and Jackson.
The question of whether to overturn Roe and Casey has always been an easy one and is not dependent on the unique insights of any particular ideology. Originalists have given the false impression that only originalism could overcome Roe and Casey. In the end, overturning Roe v. Wade has required courage and decades of political activism, yes, but it has not required originalism. After the likely result in Dobbs, it is clear that Roe’s opponents do not owe originalism a debt of gratitude or a duty of continued loyalty.
Yves Casertano
