Glucksburg and Roe
In Dobbs, Justice Alito held that Roe must be overturned because it was “egregiously wrong.”1 He applied the Glucksburg test to find that in 1973 when Roe was decided, there was no right to abortion deeply rooted in our nation’s history and tradition.
In fact, Dobbs was just the latest front in the ongoing battle over how to define unenumerated rights for purposes of the deeply rooted analysis. As I previously discussed, the outcome of the Glucksburg test hinges on how narrowly the asserted right is framed.
One may say that the right in question is “privacy” and abortion is simply a particular application of this right. Privacy is certainly a deeply rooted value in the Anglo-American legal tradition. Thus, the constitution protects abortion.
This approach to rights framing is on display in the Supreme Court’s cases on gay rights. In cases like Lawrence and Obergefell, Justice Kennedy relied on broad principles such as liberty, dignity and privacy to find that the constitution protects the substantive rights of gay people.
But at a sufficient level of abstraction, anything and everything can be conceptualized as an exercise of liberty or privacy or dignity. So the test loses all of its discipline and rigor. It’s just a vehicle for unelected judges to impose their policy preferences on we the people.
On the other side, rights are defined as narrowly as possible. Thus, in Glucksburg itself, the court rejected the claim that physician assisted suicide is protected by the right to bodily autonomy. The court found no right to physician assisted suicide deeply rooted in history or tradition.
But this approach is a straight jacket that effectively eliminates the court’s ability to find new unenumerated rights. If a right wasn’t previously recognized, it can’t be recognized now. But if it were already universally accepted, there would be no need to protect it in the first place.
We may try and take a middle way, as I proposed last time, by agreeing with the conservatives that a right, narrowly construed, must be recognized by the people in the form of state practice, but reject the requirement that a right is deeply rooted only if it was recognized at the founding. In this approach, historical practice is relevant but not dispositive. Modern state practice is given greater weight than that of the 1790s or the 19th century.
But that compromise won’t save Roe. Roe invalidated laws regarding abortion in 49 states. In no sense could it be justified as widely recognized by the American people in state practice.2 And in the aftermath of Dobbs, states continue to vigorously debate abortion rights. It seems that abortion is prevailing at the ballot box so far, but one can hardly say the matter is settled such that a federal court could hold with a straight face that abortion is deeply rooted in Americans’ understanding of their fundamental rights.
The gay rights cases may be on the chopping block as well. One is unlikely to find that at the times Lawrence or Obergefell were decided that states overwhelmingly authorized, much less protected, homosexual sex or marriage (leaving aside the “deeply rooted” history of homophobia).
And of course Obergefell relied on a right to marriage, recognized in Loving v. Virginia, where the court struck down anti-miscegenation laws on the books in 163 states at the time. Looks like Loving too may have to go.
Or perhaps not. Equal protection has entered the chat.
In Casey, a majority of the court previously upheld Roe, but that decision did not try to rehabilitate Roe in terms of constitutional doctrine and instead relied mainly on stare decisis. While Justice Alito gave short shrift in Dobbs to the reliance involved, the proposition that a wrongly decided constitutional ruling should stand merely in the basis of stare decisis is dubious to say the least.
To be clear, Roe did not purport to apply the Glucksburg test per se, which was developed later. The constitutional logic of Roe seems to boil down to: 1) privacy is protected by due process for some reason; 2) abortions are private; therefore 3) abortion is a fundamental right. You don’t need to be Sam Alito to find that reasoning wanting.
This hints at another methodological problem with Glucksburg: how much and what kind of state practice justifies recognizing a right? How many states? All, the vast majority, a bare majority? And is active legal protection required, or simply lack of prohibition?