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Sherif Girgis on the Draft Dobbs Opinion and Its Critics
An assessment of claims that Justice Alito's draft opinion rests on historical error, provides no meaningful basis for distinguishing abortion from other unenumerated rights, and forecloses constitutional protection of the mother's life.
The unprecedented leak of a draft majority opinion in Dobbs v. Jackson Women's Health Organization has prompted substantial commentary, both on the leak and the substance of the opinion. Author David Garrow praised the opinion in the Wall Street Journal (prompting letters from Professor Steven Calabresi and Jennifer Mascott). Others have been far less complimentary.
Notre Dame Law School Professor Sherif Girgis has written extensively on Dobbs, and whether the Court can uphold the Mississippi statute in a principled way without overturning Roe v. Wade. He has also been active on Twitter responding to various criticism of the opinion. As I found Professor Girgis's points thoughtful and interesting, I asked him to summarize them for a post. His response is reproduced below.
Sherif Girgis: Crowd-critiquing Justice Alito's Draft: Historical Claims, Other Rights, Life Exceptions
The leak of a draft opinion for the Court in Dobbs has enabled something remarkable: the crowdsourced critique of a Supreme Court opinion before its release. And it's done so in a case where the incentives and opportunities to expose the draft's flaws could not be greater—given the topic, the massive significance of the outcome for both sides, the possibility of forcing changes (or informing dissents), and the sheer number of the draft's historical claims and legal arguments. Under these unprecedented circumstances, a feast for any law professor on social media, how has the draft fared? I've discussed a few emerging criticisms with friends on all sides. Here, at Prof. Adler's kind invitation, I'd like to elaborate, focusing on the objections that the opinion:
- rests on a historical error,
- offers only ad hoc ways to distinguish abortion from other unenumerated rights, and
- forecloses even a narrow constitutional right to life-saving abortions.
- Historical error?
Following Glucksberg on the Due Process Clause (and early cases on the Privileges or Immunities Clause), the opinion holds that generally speaking, an unenumerated right must be deeply rooted in history. And it holds that abortion is not. Here Justice Alito makes three vast claims that would be independently decisive if true:
(a) From the early common law until just before Roe, no law, no state case, no federal case, no legal treatise, and no academic work suggested a right to abort.
(b) By the 14th Amendment's ratification, three-fourths of the states had statutorily expanded criminal penalties to cover abortion at all stages. In fact, in several cases it was the same legislature that expanded those penalties and ratified the Amendment.
(c) Even before ratification, there could have been no common law right to abortion since according to leading treatises and cases, "[a]t common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages."
Though (a) tries to prove a negative, and an astonishingly broad one, I've seen just one response to it (though I will myself introduce and address a possible wrinkle at bullet 3 below). Professor Aaron Tang has argued against (a) on the ground that state cases recognized a right to early abortion. Professor Tang also argues, against (b), that 12 of the ratification-era statutes thought to ban abortion at all stages actually didn't. But he has failed to overcome detailed rebuttals by Professors John Finnis and Robert George as to the common law cases at issue or as to any of the 12 states' statutes. Nor have I seen others contest the accuracy of (b), Alito's statutory history, which is fairly conventional and largely conceded by Roe. Instead, people have questioned its relevance, on the ground that women had too little political power in the 19th century for the historic lack of abortion access to tell us very much. But no one has presented evidence that women at the time favored abortion access at higher rates than men (today the gender gap in opinions on abortion is small to nonexistent). So I think this concern is best read as an objection to Glucksberg's "deeply rooted" test itself and as a counsel to pivot to equal protection analysis, which I've discussed separately (here).
The most common charge of inaccuracy concerns only (c)'s reading of the common law. Critics point out that at common law, abortion was criminalized only post-quickening. Thus, they conclude, pre-quickening abortions were lawful at common law.
As previewed in the sentence I quoted at (c), Alito affirms that the common law drew "a distinction between pre- and post-quickening abortions" and that it didn't generally treat pre-quickening abortions as crimes. Yet something can be non-criminal and still unlawful. For instance, it might be subject to civil penalties. Alito's point was that pre-quickening abortions were "regarded as unlawful"—that was Hale's word, in a passage embraced by Blackstone—in another and more serious sense. They were treated the same as felonies under a sort of early felony-murder doctrine. Under that doctrine, while murder normally requires injurious or lethal intent or knowledge (actual malice), you can be guilty of murder for accidentally causing someone's death if you do so in the course of committing a felony (e.g., robbery). The law finds "implied" malice in your accidental killing (which turns it into murder) "because of the previous felonious intent, which the law transfers from" the felony to the killing, as Blackstone explained.
All Alito said, citing Blackstone and Hale, is that at common law, the same was true if you were performing even a pre-quickening abortion. If a non-fetal death occurred—that of the mother, or of the child if briefly born alive—you could be guilty of murder. That's because the act you were performing—a pre-quickening abortion—was not legally innocent to begin with. It was done "unlawfully," as Hale wrote. It was "without lawful purpose, dangerous to life," and thus supportive of an "imputation of malice" for murder, as the Massachusetts high court put it in 1845. Otherwise—if the early abortion were lawful—there would have been no malice for the law to "transfer" to the accidental killing, and you could not have been liable for murder.
Alito cites sources identifying other ways that even early abortions were legally burdened: Contracts to perform them were void for illegality. A house where they were performed could be summarily closed as a "disorderly house." Advertising them was illegal. These, too, support the point of Dobbs's history: there was no common law abortion right, even pre-quickening. In fact, that conclusion would stand even if the history rehearsed in this section were mistaken on key points. The question under Glucksberg is not whether early abortions were legally permitted but whether they were seen as a right; their lawfulness wouldn't be enough.
- Distinguishing other rights
Some object to Dobbs's premise that an unenumerated right must be deeply rooted. The "deeply rooted" test rests on longstanding precedents, though Obergefell recently downplayed it. Many warn that reinvigorating the test imperils the rights to contracept (Griswold and Eisenstadt), enter interracial marriages (Loving), pursue same-sex relationships (Lawrence), and have them recognized as marriages (Obergefell). Professor Akhil Amar has argued that these other rights are safe under Dobbs's historical test or an independent constitutional ground, like equal protection. Indeed, Amar has harsh words for contrary arguments (some not repeatable on a family-friendly law-nerd blog). If Amar is right, the concern that Dobbs would undercut other rights can be dispatched on its own terms. Other scholars have argued that the precedents recognizing other rights would fare better than Roe under stare decisis principles.
The draft offers another basis to distinguish Casey and Roe: that only abortion involves the taking of fetal life. Professor Adam Winkler contends that this distinction makes no legal difference. And specifically, that it doesn't go to what Dobbs itself makes crucial: rootedness in history. If contraception did lack deep historical roots, wouldn't that be fatal under the draft's reasoning? Why would it matter that it doesn't take a life?
Professor Winkler's objection misreads the role that abortion's impact on life plays in the analysis. Before mentioning Griswold and other precedents, the opinion spends pages arguing that an abortion right as such is not deeply rooted in history. When the opinion turns to Griswold, it's addressing a different argument—not that abortion access as such has deep roots, but that it's part of a broader right that is historically rooted:
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make "intimate and personal choices" that are "central to personal dignity and autonomy."
Thus, the arguendo assumption of this part of Alito's analysis is that some rights that aren't deeply rooted in themselves are protected anyway, because they're aspects of a deeply rooted right to privacy or autonomy. It's here that Alito says that abortion is not part of any broader, historically rooted right to privacy or autonomy, because it ends fetal life.
Back to the question: Why should abortion's fetal impact set it apart from privacy or autonomy rights? We need a theory of what unites those other rights. There are lots of possibilities, of course, but what might the Court have in mind?
Maybe this: What animates privacy and autonomy cases is a liberal political-moral principle that you find in one form or another from Mill's On Liberty to the philosophers' brief in Glucksberg itself: There's a sphere of sacrosanct life choices over which the individual is sovereign and can't be interfered with—but this sphere ends where harm to others begins. (As Justice Ginsburg once quoted someone saying, "'[y]our right to swing your arms ends just where the other man's nose begins.'"). And just so, nearly all the rights cited in Casey and Roe (and distinguished in Dobbs) directly affect either (1) no one else (e.g., rights to refuse medical procedures), or (2) only consenting adults (rights to intimate partnerships or interracial or same-sex marriages).
By contrast, abortion does inherently harm a non-consenting party—or more precisely, it's constitutionally permissible (because it's at least rational) for states to think so. (Here "rational" means what "rational" and "legitimate" mean in rational-basis review: not crazy, and free of independent constitutional defects like animus.) Indeed, if states couldn't regard fetal death as a serious harm, it would be hard to see how some 40 states could treat non-abortion feticide as a crime, most often homicide. And the draft's point is that this arguable third-party harm takes abortion out of the sphere (privacy/autonomy) over which the individual is sovereign. So abortion bans shouldn't trigger the heightened scrutiny that a ban on purely private conduct would. They trigger only rational basis review.
From this angle, Griswold is different because preventing conception does no direct harm to a third party, or a third being of any kind. It only prevents the partners' gametes from joining.
Only one unenumerated right (abortion aside) has any direct effect on third parties who aren't consenting adults: the right to direct one's children's education. But unlike with abortion, states couldn't rationally think of this right as inherently harmful. (By "inherently" harmful I mean that an alleged harm flows from any exercise of the right, not just the bad exercises. If one exercise of the right to abort is harmful to another being (or permissibly believed to be so), then all exercises are, and for the same reason. Not so with the right to educate one's children.)
Something like this idea—that abortion falls beyond the reach of the liberal principles driving privacy (and autonomy) cases—animates Judge Henry Friendly's draft opinion in a pre-Roe abortion case and Amar's comments in a recent podcast. Even Justice Blackmun in Roe conceded that abortion's fetal impact makes it "inherently different" from these other rights.
Crucially, abortion's third-party impact can be weighty enough to set it apart from other privacy or autonomy rights even if the harmed "party," the fetus, isn't a "person" for purposes of the Fourteenth Amendment. In fact, Roe and Casey themselves taught that saving X's life can be a compelling interest even if X isn't a person; they said just that of viable fetuses. Under Roe and Casey, post-viability abortion bans were permitted (though they burden a right) because they serve a compelling interest—but not required, because the late-term fetus isn't a constitutional person. (See pp. 340-341 & n.46 here.) Here, by analogy, whether or not the fetus is a constitutional person, abortion's lethal impact can be morally significant enough to remove it from the realm over which each individual is sovereign under our autonomy and privacy cases.
- Life exceptions
Finding that general bans on deliberate feticide have a long history and don't violate equal protection, Dobbs applies rational-basis review to abortion laws. Some say this forecloses even a narrow constitutional right to abortions needed to prevent the mother's death, or death or serious bodily injury. (For ease I'll refer to the "life exception," though the history I will describe offers some support for an exception when there's a threat of grave bodily injury or death, and I think the two are practically inseparable insofar as an emergency threatening serious bodily injury will also increase the risk of death.) Others say that any basis for such an exception could well support a broader one, thus undermining Dobbs's general rejection of a constitutional right to abortion.
I disagree on both points. But I do think Dobbs's analysis would spell the demise of Doe v. Bolton (1973), where the Court articulated an extremely capacious health exception.
As an initial matter, I should note the life-exception issue isn't raised (or, thus, settled) in Dobbs. The law under review contains a "medical emergency" exception, and neither the clinics nor the United States has alleged that this exception is unlawfully narrow. That may be why the question presented focuses on "elective" abortions. So the life-exception question isn't at issue.
It will almost certainly never arise in the future either. I know of no state or locality—at any point in U.S. history—that has forbidden a pregnant woman to obtain treatment (however labeled) that is needed to save her life even when it results in fetal death. Nor have I seen lawmakers arguing that procedures intended to save the mother's life should—or even may morally—be banned. And as I discuss below, abortion opponents may well have longstanding principled (not just political or pragmatic) reasons for so uniformly embracing a life exception.
So, thankfully, this objection has no practical significance. At most, I gather, it's meant to raise theoretical concerns: Would the Dobbs opinion's analysis imply that there is no constitutionally guaranteed life exception? And if so, does that prove the opinion's analysis unsound, and thus incapable of supporting its conclusion about elective-abortion bans?
Start with the latter—whether it would be fatal for an argument if it foreclosed a constitutional right to a procedure necessary to preserve the mother's life but inevitably fatal to the fetus. There is a clear moral right to this exception to abortion laws: any just system must protect this right somehow. But on anyone's view, there are some moral rights that our Constitution doesn't secure, for better or worse. Does it secure this one? Consider three adjacent issues: First, do you have a constitutional right to cause another's death—an attacker's death—in defense of your own life (i.e., a right to plead self-defense to homicide)? A recent Supreme Court case makes the answer non-obvious and contingent on matters of historical fact (rather than on the strong moral imperative to recognize such a right). In that case, the Court, per Justice Kagan, found no constitutional right to another defense—a certain sort of insanity defense—due to a history of inconsistent protection. Second, as to another issue adjacent to whether states must allow abortions to stop lethal threats, the Court has rejected a constitutional claim to states' protection from private violence. Third, while the Court has recognized rights to refuse medical treatment, it hasn't affirmed a right to obtain medical treatment, even to save one's life, free of state interference. (One might have invoked this right against, say, a ban on imports from a country that manufactured a drug one needed to survive.) These issues can be variously distinguished. But putting them together, it's possible to imagine courts finding no general right to take lethal action (abortion or otherwise) against privately caused or naturally emergent harm.
That said, pregnancy is a unique context, and the Dobbs opinion leaves open several possible paths to such a right in the case of abortion.
A. Rational basis? Then-Justice Rehnquist in Roe said bans on life-saving abortion might fail rational-basis review. Perhaps he was thinking that such bans wouldn't do anything. They wouldn't save the fetus, who would presumably die along with the mother. That's true pre-viability. And it is not clear that post-viability, at least today, saving the mother ever requires killing the viable fetus (as opposed to removing the fetus, albeit at some risk to that fetus). If not, Dobbs's application of rational-basis review to abortion laws would not foreclose any procedures needed to save the mother.
More robustly, if the rational-basis test is tantamount to asking if a rational government could adopt the policy under review, then it may be decisive that for centuries of American history no government has ever banned life-saving abortions (despite long histories of banning abortions of every other kind). That may establish that such a ban would have no rational basis. It's really just the flipside of the reason to think the issue won't arise in real life.
B. Deeply rooted? A right to a life exception to abortion laws may also be deeply rooted in history, and thus protected under Dobbs's own substantive due process analysis. All state bans at the time of the Fourteenth Amendment's ratification—and since—made exceptions for abortions to prevent maternal death, or death or serious bodily injury. A few seem to have done so only by limiting bans to abortions done "without lawful justification" or the like, leaving the details to background criminal law principles. But most were explicit. And none was taken to ban abortion without a life exception. Indeed, the evidence for this history lies in Dobbs itself—in the appendix that reproduces dozens of statutory bans as of 1868. And as to the common law, the medico-legal writers cited here who argued that common law made abortion indictable at every stage—or who advocated statutory criminalization at every stage—also held that the common law had always included a life exception for every stage. If these statutory and common law exceptions suffice to establish a deeply rooted right—if we don't also need, say, treatises or court cases or other sources explaining that life exceptions were not an act of grace on the states' part, but required as a right—then Dobbs's (and Glucksberg's) own "deeply rooted in history" test would support an unenumerated right to a life exception.
C. Consistency with Dobbs's distinguishing of other unenumerated rights? Would these defenses of a guaranteed life exception contradict Dobbs's proposal to distinguish abortion from other unwritten rights based on third-party harms? (After all, don't maternal-life-saving abortions cause the same alleged third-party harm as other abortions?) No, there's no contradiction, if I'm right (at bullet 2 above) that Dobbs allows two paths to substantive-due-process protection. Abortion's third-party harm would block just one: it would prevent life-saving abortions from counting as "integral" to a "broader" deeply rooted right to privacy or autonomy. But a right to life-saving abortions could still be protected as itself deeply rooted. And everyone grants that there are unenumerated rights that don't sound in privacy or autonomy; Dobbs itself lists several.
D. Pandora's Box? Might recognizing a right to some exceptions open up the possibility of a right to non-life-saving abortions, and thus unravel Dobbs's rejection of a constitutional abortion right? After all, courts would have to determine the level of generality at which to define the historic tradition of allowing life exceptions. Maybe it was ultimately about, say, allowing abortions for pressing reasons. If so, it would sweep more broadly than medical emergencies.
While deciding how to define a deeply rooted right is often tricky, here it seems less tricky than almost ever. For one thing, in discerning the scope of the exception, we wouldn't have to interpret diffuse political practices ("states have often and in various ways respected people's ability to do X, so X must be a right"). We'd only be interpreting discrete legal texts—indeed, a small and sharply defined set of legal texts: the statutory abortion bans extant in 1868 and listed in Dobbs's appendix. And almost all the bans passed from 1828 to 1868 (and down to 1960) defined the exception at issue in highly determinate terms, listing only abortions needed to prevent the mother's death, or to prevent her death or serious bodily injury. Yet there have always been other pressing reasons to abort. The upshot (to quote Glucksberg's criteria of "deep-rootedness") is that "centuries of legal doctrine and practice" banning almost all abortions—together with states' "considered policy choices" to make only a narrow life (or life-and-serious-bodily-health) exception—reflect a specific judgment that there is no right to other abortions.
There's more evidence that this was the operative judgment. The Fourteenth Amendment's ratifying generation repeatedly expressed its conviction, in light of then-recent developments in the science of human embryogenesis, that abortion at any stage takes a human life. And it's a commonplace of our legal and philosophical traditions that private actions that result in someone's death are justified only to prevent another death or perhaps serious bodily injury, as per the right to self-defense. So it's no wonder that almost every state banning abortion reached the same normatively salient equilibrium point: that (fetal) life may be taken only in the process of preventing the loss of another (maternal) life (or serious bodily injury).
Indeed, an enduring view in our ethical and legal traditions would find a difference in kind, not degree, between life-saving and other procedures. On this view, it's not just that the benefits happen to trump the costs with life-saving abortions and those alone; it's that the act involves a different intent in life-saving cases. As the Supreme Court observed in Vacco v. Quill, which upheld a ban on assisted suicide, "[t]he law has long used actors' intent or purpose to distinguish between two acts that may have the same result." Thus, the "common law of homicide" has often distinguished "a person who knows that another person will be killed as a result of his conduct" from "a person who acts with the specific purpose of taking another's life." To support the legal relevance of intent for homicide law, Vacco cited, among other things, treatises from the same antebellum era in which states were passing the laws cited in Dobbs that banned abortions except to save the mother's life. Indeed, Vacco called intent-based distinctions "universal and persistent in mature systems of law" of all kinds. And Vacco held that such distinctions rationally explain the choice of an "overwhelming majority of state legislatures" to ban assisted suicide while allowing the "withdrawing or [. . . ] refusal of unwanted lifesaving medical treatment." A similar principle could rationally explain the choice of most states in the 1800s to ban all (other) abortions while allowing procedures needed to save the mother's life.
In both cases, the underlying ethical principle, emphasized for centuries in what Isaiah Berlin called "the central tradition of Western thought," has affirmed a crucial difference between (1) actions intended to cause an innocent's death (as an end or as a means to another goal), which were deemed always wrong; and (2) actions that had death as a foreseen side effect, which were permissible if done for proportionate reasons. States that considered the fetus an innocent life may well have seen maternal-health procedures as falling in category (2), and others in (1).
After all, with most* non-health-related abortions, part of the goal is to avoid the burdens of parenthood on the one hand, and of giving a child up for adoption on the other. And for that dual goal, fetal death is a necessary means; removal isn't enough. If the fetus survived, the procedure would have failed to achieve its goal. Contrast those abortions with urgent health interventions—e.g., removals of a cancerous uterus, or of part of a fallopian tube in an ectopic pregnancy. Here the end of saving the mother's life isn't advanced at all by fetal death. If the fetus survived along with the mother, the procedure would still have achieved its goal in full. So death is not a means but a side effect. And accepting even a person's death as a side effect of saving a life—even outside the abortion context—is thought justified by ethicists of many stripes.
If the states' historic policy choices were shaped by anything like this contrast, long salient in Western thought and law, then abortions to save the mother's life would not have seemed like abortions in the focal sense (so-called "direct abortions") at all. Indeed, those abortions naturally fall outside the definition of "abortion" "for legal purposes" that Professor Glanville Williams provides in his classic Textbook of Criminal Law: "feticide: the intentional destruction of the fetus in the womb, or any untimely delivery brought about with intent to cause the death of the fetus" (emphasis in original). Even today, distinguishing "direct" from "indirect" abortions based on whether there's lethal intent is part of bioethical discourse. And our related distinction between "therapeutic" and elective abortions captures a similar perceived qualitative difference.
(*One can imagine non-life-saving abortions where fetal death is not a means. For example, if the goal is only to avoid the physical discomforts of pregnancy, evicting the fetus will suffice, whether it lives or dies. But even if states in 1868 would have seen such abortions as causing death only as a side effect, it is no surprise that they banned them anyway. If they regarded fetal life as anything like innocent human life, they would have countenanced fetal death as a side effect only for the most serious reasons—saving another from death or serious bodily harm.)
Even if it turns out that these ideas about intent didn't directly influence the antebellum generation's policy choices on abortion, the other points taken above confirm that any deeply rooted right to a life (or life-or-serious-health) exception would likely be stable and self-contained.
E. Doe v. Bolton. In fact, the history is such that any truly rooted right would be narrow enough to make clear that Doe v. Bolton's sweeping definition of a health exception, to include "emotional, psychological, familial" factors, does not reflect the constitutional requirement. (Another reason Doe would likely fall with Roe is that Doe was Roe's companion case, giving effect to Roe's much-critiqued (by both sides) focus on physicians' putative rights: Doe's health definition was meant to spell out the "medical judgment" that physicians had a right to exercise under Roe.)
F. Consistency with overturning Roe? Would reversing Roe eliminate any right to a life exception? No. While Roe said there was a right to life-saving abortions, that was no part of the basis for its outcome or, thus, its holding. It could not have been, since the law at issue in Roe already allowed abortion to save the mother's life—as the Court noted. (The Court faulted the law only for "sweep[ing] too broadly" by "mak[ing] no distinction" between early and late abortions and allowing abortions only to save the mother.) But if a life-exception right wasn't a holding in Roe, and rests on independent grounds (rational-basis review or pre-Roe historical practice), overturning Roe cannot eliminate it. Compare: Smith said that the Free Exercise Clause (a) forbids official discrimination based on religion, but (b) doesn't forbid incidental legal burdens on religion. Yet Smith didn't rest on point (a), and point (a) rests on grounds that are prior to Smith—the Free Exercise Clause and earlier precedents. For those reasons, if Fulton had said "Smith is overruled," no one would have thought Fulton was rejecting (a).
G. Would a caveat change anything? Has the draft opinion omitted a caveat about life exceptions because adding one would blunt the rhetorical force of Dobbs's arguments against a general abortion right? Suppose the draft were revised to say that "life-saving medical procedures aside, it's the case that for centuries leading right up to the mid-20th century, no legal text, no state case, no federal case, no legal treatise, and no academic article contained a whiff of support for a right to abortion; none; zero." If the original (which I've closely paraphrased) sounded to your ear devastating for Casey and Roe, I suspect the revision would, too. Setting aside "life-saving medical procedures" wouldn't be deflating because the possibility of a life exception was contextually salient to begin with, given the antebellum statutes that Dobbs itself relies on and lists in its appendix (and also, perhaps, because a life-exception right would protect less than 1% of abortions, and a 1% that is never banned anyway).
With or without an express caveat, Dobbs's holding would be clear: States could pass the sorts of laws reproduced in Dobbs's appendix, most of which forbade all abortions but those needed to prevent death, or death or serious bodily injury. That holding would be sweeping. But for better or worse, it would be no more sweeping than its rationale. If Dobbs's basis for upholding Mississippi's pre-viability ban is that (1) Roe and Casey had no legal basis to impose the normative judgment that until viability the interest in aborting outweighs the interest in guarding fetal life, and that (2) history leaves states free to assign these interests different weights, then Dobbs would be incoherent if it didn't overrule Roe and Casey and quite generally restore rational-basis review.
