The leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is unprecedented. The mere fact of the leak is unprecedented, though perhaps not surprising since ready access to abortion has become something more than a legal question to many lawyers, activists, and politicians. Norms, no matter how cherished or long held, yield in emergencies, and one suspects that a certain kind of advocate believes this is an emergency. Scarcely less shocking than the leak, however, is the fact that the draft opinion itself indicates, at least as a preliminary matter, that there are five votes to overturn Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the twin pillars of the legal abortion regime in the United States.
Justice Alito’s draft was dated (at least for the purposes of circulation) February 10, 2022 and is marked “1st Draft.” Considering that Dobbs was argued at the beginning of December 2021 and the conference on the case held shortly thereafter, I think it is safe to assume that it represents a fairly early draft of the opinion, written before concurrences and dissents were circulated. The Dobbs opinion probably has developed in some dimensions since February 10. Nevertheless, one imagines that the broad outlines of the opinion will remain substantially the same, barring a change in votes or some other exigency. It is only slightly premature, I think, to conduct a close analysis of the Dobbs draft as though it were the opinion of the Court.
Chief Justice John Roberts, long concerned with the integrity of the Court, its operations, and its traditions, has confirmed the authenticity of the draft that was leaked, but cautions that the draft is not the Court’s final opinion. He has also initiated a leak inquiry. The world of the Supreme Court is not very big, and one imagines that it will be entirely possible to determine who leaked the opinion. Yet the cloak-and-dagger aspects of the leak are less interesting, taken as a whole, than the opinion itself.
There is of course much to cheer in the Dobbs decision. Many people, from many different perspectives, have criticized Roe and Casey in sharp terms. They have also lamented the legal abortion regime in the United States. At this point, hundreds of thousands (millions?) of men and women have worked, some in very public ways, some in very quiet ways, to bring about a reconsideration of Roe and Casey.
I can imagine that some will claim that Dobbs is a great victory for originalism (or at least for the Republican Party’s judicial-appointments strategy that sometimes goes by the same name). Never mind that it took fifty years to overturn two opinions identifying a right nowhere mentioned in the Constitution, based upon a provision that is hard to identify exactly (but probably the Due Process Clause of the Fourteenth Amendment). The opinion acknowledges that, too: “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment,” Alito wrote. (And one might ask, too, what happened during those fifty years?)
Some may even go so far to assert that critics of originalism, such as Adrian Vermeule and, I assume, the rest of the contributors to Ius & Iustitium, may be safely ignored. Yet nothing in Dobbs signals an end to abortion in the United States or, indeed, in any state. Evidently Justice Alito’s hope is that the matter will simply be removed from the province of the federal judiciary. “The permissibility of abortion, and the limitations, upon it [sic] are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” Alito wrote, quoting the late Justice Antonin Scalia’s separate opinion in Casey. (Though, as I will explain in a moment, I suspect he will be disappointed in his hope.)
Of course, not everyone agrees that the Dobbs draft represents any kind of originalism. Yves Casertano, writing at Ius & Iustitium, has explained why Dobbs is not an originalist decision. But do not take it only from a paid-up Ius & Iustitium contributor. Prominent originalists like Lawrence Solum, Evan Bernick, and Anthony Sanders have already disagreed vehemently with the claim that Justice Alito’s opinion is originalist. Justice Alito’s analysis, they claim, follows the approach of the Court in Washington v. Glucksberg; that is to say, Alito looked to tradition to avoid recognizing an unenumerated right. They claim that this approach is a sort of conservative living constitutionalism, which gestures only in passing at the written Constitution and its original meaning.
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Justice Alito explicitly anticipates a world in which the right to abortion may be broader than currently provided under existing precedent. “In some States, voters may believe that the abortion right should be more even more [sic] extensive than the right Roe and Casey recognized,” Alito wrote. He went on to say, “[o]ur Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.” No limits means no limits, for good and for ill. And while it is highly likely some states may impose rigorous limits on abortion, it is no less likely that some states will relax any limits that may exist.
Moreover, Justice Alito was at pains to assure one and all that the draft opinion in Dobbs addresses only the abortion question. “[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Dobbs, therefore, represents simply the Supreme Court’s attempt to withdraw from the question of abortion and cannot be understood, at least on the draft opinion’s own terms, as part of a broader reconsideration of the law. The narrowness of the Dobbs draft opinion leaves altogether unaffected therefore the applicability of the classical legal tradition to every other question touching upon our political life.
The suggestion, therefore, that Dobbs silences critics of originalism or indeed of the conservative legal movement more generally doesn’t hold water. For example, Vermeule’s Common Good Constitutionalism does not deal directly with abortion. Indeed, Vermeule states frankly that “the classical triptych of justice, peace, and abundance . . . is not intended to provide specific answers to questions about … the circumstances under which abortion should or should not be legal . . . .” Later, in a note, Vermeule states that “[w]ith the current jurisprudence under a cloud of uncertainty, I will leave the issue for future work,” though he endorses the argument for Fourteenth Amendment personhood, which is “not a mere rejection of Roe v. Wade, but the affirmation of the opposite right, and would be binding throughout the nation.” Any claims about Dobbs and the classical legal tradition reflect fundamentally an impoverished political imagination, which conceives of one and only one moral question confronting the Republic. (If that.)
Even if the poverty of originalism passed better as riches, the Dobbs decision would not actually resolve the question of abortion. Indeed, it will sharpen it. Jacob Neu, writing at Ius & Iustitium, has described a Connecticut law that is intended to give Connecticut residents a right of action more or less intended to cut against the private right of action recently passed in Texas. Politicians in California and Illinois have promised to guarantee broad access to abortion not merely for residents of those states but for anyone who can get to those states. And lurking in the background of this decision is H.R. 3755, the Women’s Health Protection Act of 2021, which purports to create a federal statutory right to abortion access, notwithstanding any state laws.
Cloture on the Senate’s consideration of H.R. 3755 failed on February 28, 2022 on a 46-48 vote. While it is unlikely that the bill will be brought up again, the Dobbs leak (itself a supremely unlikely event) may change the thinking in the Senate. Already some senators have called for the abolition of the legislative filibuster in order to pass the law. President Joseph R. Biden, long identified by his supporters, including Villanova University Church historian Massimo Faggioli, as a devout Catholic, has promised to use the full force of his administration to ensure access to abortion notwithstanding Dobbs or the success or failure of H.R. 3755. (And notwithstanding the teachings of the Church.)
More than this, there are fifty state constitutions and fifty state supreme courts (and more intermediate appellate courts besides), most of which have been neglected as forums for significant constitutional litigation. For example, in Indiana, the Court of Appeals held that Article I, Section 1 of the Indiana Constitution[1] guaranteed a right to privacy that was relevant in the context of regulations on abortion. Clinic for Women, Inc. v. Brizzi, 814 N.E.2d 1042, 1048–49 (Ind. Ct. App. 2004), (vacated in relevant part on trans). In its subsequent opinion, the Indiana Supreme Court ducked the question of a right to privacy in Article I, Section 1, proceeding on customary undue-burden grounds. See Clinic for Women, Inc. v Brizzi, 837 N.E.2d 973, 977–78, 982–83 (Ind. 2005). But see Morrison v. Sadler, 821 N.E.2d 15, 32 n.17 (Ind. Ct. App. 2005), trans. not sought. One imagines that the question of Article I, Section 1 will soon be back before Indiana courts.
All of this is to say that, while Justice Alito may earnestly hope, like Justice Scalia before him, that “[t]he permissibility of abortion, and the limitations, upon it [sic] are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” it is unrealistic to think that the courts will not be involved in the abortion question at every level going forward. Federal actions will be litigated in federal court, and there will undoubtedly be a significant effort in state courts to use provisions like Indiana’s Article I, Section 1 to recreate Roe and Casey as a matter of state law. There might not be a constitutional right to abortion, but there will be plenty to fight about.
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But Justice Alito’s seeming naïveté regarding the involvement of the judiciary in the abortion question is not the most troubling aspect of the decision. Throughout the decision, Justice Alito recognized the moral dimension of the abortion question. “[W]ielding nothing but ‘raw judicial power,’ . . . the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people,” he wrote. “Abortion presents a profound moral question,” Alito wrote elsewhere in the opinion. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” But his answer is that the states are permitted for themselves to answer it.
In my essay for Ius & Iustitium, I described the view that the question should be returned to the states as “Little Giant Constitutionalism.”[2] As I noted in that piece, in his debates with Abraham Lincoln, Stephen Douglas argued that the Constitution permitted the people of each state and territory to decide for itself the answer to the burning moral question of slavery. Abraham Lincoln, for his part, argued that slavery was moral evil that should be addressed as a moral evil. It was impossible, according to Lincoln, for Douglas to duck the moral question by insisting upon the Constitution. Indeed, ducking the moral question was for Lincoln itself a moral judgment: “When Judge Douglas says that whoever or whatever community wants slaves, they have a right to have them, he is perfectly logical if there is nothing wrong in the institution; but if you admit that it is wrong, he cannot logically say that any body has a right to do wrong.”
And there is some precedent in this case for the idea that leaving the matter to the democratic process in the states will ultimately serve the interests of the Republic. Douglas during the debates stated, “[l]et each State stand firmly by that great Constitutional right [i.e., the right “to decide, therefore, the moral and religious right of the slavery question for themselves within their own limits”], let each State mind its own business and let its neighbors alone, and there will be no trouble on this question.” His notion was that, with each state minding its business on the question of slavery, the nation as a whole could be built up through cooperation on material questions. It did not work out that way. And there is little indication that the two sides of the abortion dispute in the United States are any more likely to leave each other alone on the question of abortion while concentrating on material development.
Justice Alito’s opinion, for its many merits, leaves us in precisely the position that I feared the Dobbs decision would. While acknowledging the moral dimension of abortion, Justice Alito leaves it to the states to decide for themselves the answer to the moral question.[3] Certainly, in some states, the legislatures may decide that abortion is always immoral or immoral in the vast majority of cases, and therefore to be forbidden. However, Justice Alito reminds us, “[i]n some States, voters may believe that the abortion right should be more even more [sic] extensive than the right Roe and Casey recognized.” What is moral in California might be immoral in Indiana. While laws must be formed for their communities and the natural law adapted to concrete circumstances (cf. ST I-II q.94 a.4 co.; I-II q.96 a.1 co.), there is not so much variation in the natural law as all that (ST I-II q.94 a.4 co.).
I note too that Justice Alito’s draft opinion seems to open the door precisely toward the outcome warned against by Carl Schmitt in his 1960/1967 essay, The Tyranny of Values. This is something I noted in a piece I wrote at Semiduplex shortly after the Dobbs oral argument. As I have noted several times (largely because I think The Tyranny of Values has as much descriptive power for this moment as anything out there), Schmitt observed that the logic of values requires their imposition. The unmediated imposition of values leads, inexorably, to the war of all against all. Roe and Casey were themselves attempts to enforce values. But so too is Justice Alito’s opinion, though an altogether different value than the value enforced through Roe and Casey; indeed, it opens the door to the unmediated imposition of values in every jurisdiction through the democratic process.
This result is disturbing not merely from the moral standpoint but also from the standpoint of the classical law. Ulpian in his Rules, collected in the Digest, tells us that “[j]ustice is a steady and enduring will to render unto everyone his right” (Dig. 1.10). “The basic principles of right are: to live honorably, not to harm any other person, to render to each his own” (Dig. 1.10.1). Ulpian’s classical definition was taken up into the Christian tradition through thinkers like St. Ambrose, St. Isidore, and St. Thomas Aquinas (e.g., ST II-II q.58 a.1). Indeed, Aquinas holds that Ulpian’s classical definition is the proper act of justice: “Et ideo proprius actus iustitiae nihil est aliud quam reddere unicuique quod suum est”—“Therefore the proper act of justice is nothing else than to render to each one his own” (ST II-II q.58 a.11 co.). Aquinas also holds that Ulpian’s basic principles of right are matters of natural justice: “Ea igitur sine quibus societas humana conservari non potest, sunt homini naturaliter convenientia. Huiusmodi autem sunt, unicuique quod suum est conservare, et ab iniuriis abstinere. Sunt igitur aliqua in humanis actibus naturaliter recta”—” So, the things without which human society cannot be maintained are naturally appropriate to man. Examples of such things are: to preserve for each man what is his own and to refrain from injuries. Therefore, there are some things among human acts that are naturally right” (III Cont. gent. c.129).
While the attitudes of Romans toward the question of abortion have been debated ad nauseam, what cannot be debated is that under the Lex Cornelia de sicariis et veneficis, abortion was punishable as a crime under a couple of provisions (Dig. 48.8.8; Dig. 48.19.38.5, 48.19.39). Moreover, the classical tradition took a grim view of abortion in part because the child was seen as belonging to the republic as a whole (e.g., Cicero, Pro Cluentio 32, which was cited by Tryphoninus in his Disputations, collected in Dig. 48.19.39). This notion that man belongs in some sense to his community was taken up into the Christian tradition (cf. ST II-II q.47 a.10 ad 2; II-II q.64 a.5 co.). And indeed it is this understanding that supports the argument in favor of the classical, Christian expression of the common good articulated by Charles de Koninck in his foundational Primacy of the Common Good Against the Personalists.
Moreover, the Roman law made broad and generous provisions for children en ventre sa mere. Julian tells us, “[f]or almost all purposes of civil law, children in utero are considered as existent beings” (Dig. 1.5.26). Paul also tells us “[t]he fetus in the womb is deemed to be fully a human being, whenever the question concerns advantages accruing to him when born, even though before birth his existence is never assumed in favor of anyone else” (Dig. 1.5.7). One can trace the concept through the various provisions of the Digest, including Ulpian’s long discussion from his Edict about the circumstances under which the praetor could put unborn children in possession of property subject to the administration of a curator (Dig. 37.9.1).
It is worth noting that other modern countries maintain this Roman principle and in similar language. Article 29 of the Spanish Código Civil provides that, “[b]irth determines [legal] personality; but the child conceived shall be deemed already born for all purposes favorable to him, provided that he should be born meeting the conditions expressed in the following article.” And Article 627 provides that “[g]ifts made to conceived but unborn infants may be accepted by the persons who would legitimately represent them if they had already been born.” Likewise, Article 906 of the French Code Civil provides that “[t]o be capable of receiving inter vivos, one need only to be conceived at the time of the gift. To be capable of receiving by will, one need only be conceived at the time of the death of the testator. However, the gift or will may only take effect if the child is born viable.”
We see therefore that the classical tradition approached abortion from the aspect of the common good by recognizing that children are part of the republic, in addition to their families and other communities. The classical tradition also recognized the property rights of unborn children. Both reflect the classical principles of justice articulated by Ulpian, and the Christian tradition takes up all of these through Aquinas and others. From the perspective of the classical tradition, the idea that—in one nation—there might be multiple approaches to the question of the unborn would have been hard to comprehend. (Certainly the Roman Empire under Justinian was geographically enormous and comprised a number of individual ethnicities, not dissimilar to the United States.) Aquinas explains that Ulpian’s basic principles of right are required by man’s very nature (III Cont. gent. c.129). Man’s nature does not change between Indiana and California, no matter how tedious US Highway 50 can be through the great wastes west of Vincennes. By these lights, Justice Alito’s opinion is no less at odds with the classical tradition than Roe v. Wade was, though in very different ways.
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It is no trick to demonstrate that Roe v. Wade was wrongly decided. Justice Alito’s opinion is a masterful demolition of the unbelievably flimsy reasoning of that decision. But however masterful the Dobbs draft is as a work of negative jurisprudence, it leaves unanswered the grave moral question it recognizes. To gesture toward the democratic process does not reckon in a serious way with the moral question of abortion. Indeed, to leave questions of justice and right, which are ultimately the questions implicated by abortion, to democratic processes is to imply that there is no such thing as justice or right except insofar as democratic majorities choose to recognize them.
The classical tradition, however, posits the existence not only of objective morality (cf. ST I-II q.55 a.3 co.) but also objective right, both of which must be reflected in the laws (ST I-II q.90 a.2; q.95 a.1 co.). The solution of the Dobbs draft, while it produces an unquestionably good result, falls far short of this classical ideal. Virtue and right are subjected to democratic majorities, and it is recognized that what is virtuous and just in one jurisdiction might be diametrically opposed to what is virtuous and just in another jurisdiction. From the standpoint of the classical tradition, Dobbs is no less liberal than Roe and Casey, even if it rejects the arrogation of power to end the debate over abortion that, for Justice Alito, Roe and Casey represent.
Indeed, from the classical perspective, some may claim that it is an arrogation of judicial power to hand over to the people for a vote (or to the people’s delegates to legislatures for a vote) the requirements of the natural law. After all, five justices on the Supreme Court cannot subject the natural law to democratic processes (cf. ST I-II q.94 a.5 co. & ad 3) any more than five justices on the Supreme Court can forbid the nation from debating in vehement terms the moral question of abortion.
But the broader questions of jurisprudence can wait for another day. For now it is sufficient to cheer the likely result in Dobbs, even as one recognizes that Dobbs will not remove the question of abortion from the dockets of courts at all levels and in all parts of the nation and as one recognizes that Dobbs presents its own problems.
Pat Smith
[1] “WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.” Ind. Const. art. I, § 1. This provision is a combination and simplification of two provisions of the Constitution of 1816. See Ind. Const. of 1816 art. I, §§ 1–2.
[2] I did read Professor Stephen Sachs’s response to this piece at the Volokh Conspiracy, and it was a treat to see my name mentioned at a blog that was a regular fixture of my reading in law school. (Some professors admitted that they looked for exam questions on the Volokh Conspiracy.) As to his claim that law and morals are separate, that is a position that I cannot and do not accept (ST I-II q.95 a.1 co.). There is little point discussing the matter further with such a gulf in premises.
[3] The wrongfulness of abortion I take for granted. Second Vatican Council, Pastoral Constitution on the Church in the Modern World Gaudium et Spes, no. 27 (1965); John Paul II, Encyclical Letter on the Value and Inviolability of Human Life Evangelium vitae, no. 58 (1995). Cf. ST II-II q.64 a.6; II-II q.64 a.7 ad 2.