What the Leaked Abortion Opinion Gets Wrong About Unenumerated Rights
The Constitution protects many more rights than it mentions.
The leaked "1st Draft" opinion of the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization that was published yesterday by Politico would, if officially released by the Court, overturn both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the key precedents securing a woman's constitutional right to terminate a pregnancy.
The author of the leaked draft opinion, Justice Samuel Alito, makes the standard conservative argument against abortion rights. "The Constitution makes no reference to abortion," Alito writes, "and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito continues: "The right to an abortion does not fall within this category."
But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category. Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity. And the right of bodily integrity has a very impressive historical pedigree indeed. In fact, as the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity may be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported from English law into the Constitution.
The constitutional right at issue in Dobbs only fails the "deeply rooted" in history and tradition test (a test wholly invented by the Supreme Court, by the way) when the Court defines the right narrowly. But when the right is defined broadly—defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.
I am reminded of the words of the political theorist Stephen Macedo, who, while debating the late Robert Bork in 1986, offered this memorable description of the American constitutional system: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the founders, as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."