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As many Court-watchers and legal prognosticators have been predicting for weeks since the premature and unauthorized leak of a draft opinion in Dobbs v. Jackson Women’s Health Org., the Supreme Court of the United States has decided to overturn its landmark ruling in Roe v. Wade, 410 U.S. 113 (1973), along with Roe‘s progeny in Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 883 (1992).  You can read the Court’s official opinion in Dobbs here.

The immediate legal consequence of the Court’s ruling in Dobbs is that, absent a new legal framework emerging any time soon, the United States Constitution, as interpreted by the nation’s court of last resort, no longer prohibits states from enacting various restrictions on abortion because, according to the Dobbs majority, the Constitution does not protect from the reach of state law a right of privacy of women to make decisions, in consultation with their physicians, to terminate pregnancies.

But that does not mean that abortion-rights advocates who are displeased with the outcome in Dobbs have no recourse moving forward.

How We Got Here: A Primer on the Law of Substantive Due Process

After the Civil War, pursuant to its power under Article V of the United States Constitution, the United States Congress adopted a resolution to propose certain constitutional amendments to the states for their consideration and ratification.  Simply put, after having fought a bloody war on domestic soil over the institution of slavery, those serving in Congress at the time thought that it would be necessary to amend the Constitution to bring about a formal end to the institution of slavery and further protect newly emancipated slaves from continuing forms of discrimination and subjugation, especially to the extent that motivated racists continued to occupy seats of power in southern states that were readmitted to the Union after the conclusion of the war.  Out of this process, the Reconstruction Amendments–Amendments XIII (which abolishes slavery throughout the United States), XIV (which, among other things, prevents states from denying to any person access to certain “privileges or immunities,” due process of law, or equal protection of the law), and XV (which protects the voting franchise for racial minorities)–were born and were fully ratified by early December 1865.

The second clause of Section 1 of the Fourteenth Amendment provides that no state shall make or enforce any law that abridges the privileges or immunities of United States citizens.  The third clause of the same section prohibits states from depriving any person of life, liberty, or property without due process of law.

Reading the text of these provisions in isolation with perhaps a high-school-level familiarity of the English language, and a basic understanding of the meaning of those words in common vernacular, one might read the Privileges or Immunities Clause to mean that there are certain individual rights or civil liberties that the Constitution protects from state interference, and the Due Process Clause to mean that state governments cannot take someone’s stuff, put them in a cage, or terminate their life without first going through certain procedures.

The second reading is true–or at least partially correct–there is an entire body of American constitutional law called “procedural due process,” which measures whether a governmental defendant jumped through an adequate number and the right kinds of hoops before it encroached on someone’s interest in life, liberty or property.  But the former reading, at least according to the Supreme Court’s ruling in the Slaughter-House Cases, is not correct.  In those cases, the Court ruled that the Privileges or Immunities Clause does not refer to a broad set of individual civil liberties with which states cannot interfere but instead protects only a limited, narrow set of rights of national citizenship (running for federal office, gaining entry into the country from abroad, etc.).

The doctrine of substantive due process thus emerged slowly in the late 19th and early 20th centuries to try to answer what “liberty” the Fourteenth Amendment’s Due Process Clause protects.  Does it only the protect the individual rights and liberties that are explicitly spelled out in the Bill of Rights?  Was it more?  Was it less?

The doctrine of substantive due process is based on a legal presumption that there are certain areas of human life that are so sacrosanct and inviolable that governmental encroachments on them are virtually intolerable or fundamentally unfair, irrespective of what pre-deprivation procedures a state governmental actor follows, unless the state has a really good reason for the encroachment.  In other words, the doctrine of substantive due process takes the position that the guarantee of due process of law entails substantive limitations on states’ powers.  When a state has a really good reason to encroach on one of these areas of life, the state can survive a constitutional challenge to its encroachment only if it satisfies the requirements of “strict scrutiny,” i.e., if the governmental entity demonstrates to a court that (a) it has a compelling interest in encroaching on a right and (b) its method of encroachment is narrowly tailored to that particular end.  Governments almost always lose constitutional challenges where a court applies strict scrutiny.  In any event, the doctrine of substantive due process basically attempts to give meaning and contours to the otherwise ambiguous word “liberty” in the Fourteenth Amendment’s Due Process Clause.

Substantive Due Process in Action in the Abortion Context

In Griswold v. Connecticut, 381 U.S. 479 (1965), nearly a decade before the Supreme Court decided Roe, the Court invalidated a Connecticut statute that both prohibited the use of oral contraceptives and banned doctors from even advising their patients about the use of oral contraceptives.  The Court’s ruling turned on its interpretation of various provisions of the text of the Bill of Rights to mean that the United States Constitution protects a zone of privacy around consenting adults’ decisions concerning reproduction that they make in consultation with their doctor.

Specifically, to find a constitutional right of “privacy”–a word that you will not find anywhere in the text of the Constitution–the Griswold Court looked instead to the “penumbras and emanations” of the text of the First, Third, Fourth, Fifth, and Ninth Amendments to conclude that certain zones of privacy in human affairs are shielded from interference by the government.  What that means in plain English is that the Griswold Court said, in essence, “even if the word ‘privacy’ is not in the Constitution’s text, if you look at the text that is in the Constitution, and you squint really hard, then you can sort of see a right to privacy when reading between the lines.”  Thus, “liberty,” as used in the Due Process Clause, began to include a right of privacy with respect to reproductive health and intimate human affairs.

Nearly a decade later, the Roe Court, relying on Griswold Court’s right of privacy with respect to reproductive health and intimate affairs, concluded that the word “liberty” in the Due Process Clause also protects a zone of privacy around a woman’s decision, made in consultation with her physician, to terminate her pregnancy.  In so doing, the Roe Court also adopted a tripartite regulatory framework for abortions.

In the first trimester, the most that a state could do is require that a licensed medical doctor perform the abortion procedure.  The decision of whether to have an abortion belonged exclusively to the pregnant woman, and the state could not interfere.

In the second trimester, a state could regulate but not prohibit abortion outright, and only then to protect a pregnant woman’s health.

In the third trimester, a fetus was legally presumed to be viable, i.e., capable of life outside the womb, and states could regulate or outlaw abortion in just about any context, except when performed to protect the life and/or health of a pregnant woman.

Nearly two decades later, the Supreme Court rejected Roe‘s tripartite regulatory framework in Casey, finding that the tripartite framework was ultimately arbitrary.  Due to advancements in our understanding of prenatal health and the improvement of health outcomes in medicine, and given that whether or when a woman’s life or health was implicated, and whether a fetus had reached a stage of viability, was a constantly moving target, to say nothing of the uniqueness of each pregnant woman’s physiology relative to all others, the Casey Court determined that the Roe Court had engaged in a made-up line-drawing exercise in laying down its tripartite regulatory framework for abortion.

The Casey Court, however, affirmed Roe‘s core holding that the Constitution protects a zone of privacy around a woman’s decision, made in consultation with her physician, to terminate her pregnancy.  As for a regulatory framework, the Casey Court held that state regulations of abortion violated this right if the regulation at issue imposed an undue burden on a woman’s access to the procedure before the fetus reached viability–if the regulation placed a substantial obstacle in the woman’s path to a pre-viability abortion procedure.

Following Roe and Casey, many States also found an abortion privacy right in their otherwise ambiguous state constitutions.  For example, in Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), the Supreme Court of Tennessee ruled that the Tennessee Constitution protects a zone of privacy around a woman’s decision, made in consultation with her physician, to terminate her pregnancy.

Critics of Griswold, Roe, and Casey Attack Methodology Behind Privacy Rulings and Respond Accordingly

Critics of Griswold, Roe, and Casey have, for years, railed against the perceived excesses of the Warren Court, the most progressive Supreme Court in American history, by targeting the “penumbras and emanations” approach to constitutional interpretation.  As the argument goes, the Warren Court was a collection of politicians in robes who reverse-engineered legal decisions based on predetermined outcomes to which they were guided by their ideological and/or partisan preferences.  Roe, to its critics, was the pinnacle of judicial activism in American history.

If one accepts those premises as true, then overturning Roe becomes a self-described, self-appointed noble effort to right a past wrong, to be more faithful to the constitutional text, and to constrain the Court’s influence over millions of Americans who are far-flung across the North American continent in fifty states in a pluralistic, democratically self-governing society.

Candidly, I have not yet digested the Court’s full opinion in Dobbs, but my understanding from the portions that I have read, and the commentary thereon, is that the majority’s decision to overturn Roe largely and predictably follows these critiques and self-appointments to their logical ends.  All Dobbs did was to say that the challenged Mississippi laws at issue were constitutional because the U.S. Constitution does not actually protect the fundamental abortion-privacy right that the Roe Court found.  The Dobbs opinion did not ban abortions; the Court simply said that whether States can regulate, restrict, prohibit, encourage, or fund abortion is not a federal constitutional question, but instead a question of whether or how states use their plenary police powers to regulate the health, safety, welfare, and morals of people within their territorial boundaries.

Some states have also responded to their high courts’ findings of abortion-privacy rights where the state constitutional text is, like the U.S. Constitution, silent on the notion of “privacy.”  In 2014 in Tennessee, for example, voters amended the state constitution to effectively undo the Sundquist ruling.  Today, the Tennessee Constitution expressly provides, contrary to what the Supreme Court of Tennessee ruled in Sundquist, that “[n]othing in this Constitution secures or protects a right to abortion[.]”  Any court of competent jurisdiction in Tennessee hearing a state constitutional challenge to an abortion regulation or restriction must give meaning and effect to the words of the 2014 amendment.  Sundquist simply no longer controls as precedent by operation of the plain language of the state constitution.

What to Do About Dobbs If You Don’t Like the Result in Dobbs

As stated above, one potential immediate consequence of the Dobbs decision is that states can now enact more restrictions on abortion than exist today.  In other words, states are no longer constrained by the United States Constitution from enacting (or declining to enact) regulations, restrictions, and/or prohibitions on abortion.  We can reasonably predict that a patchwork will emerge in which several states will not only not restrict abortion but may also fund abortion, whereas several other states will regulate, restrict, and/or prohibit abortion–even in the controversial cases.

The Tennessee General Assembly, for example, enacted what is called a “trigger law” in 2019, i.e., the law basically says that, “if the U.S. Supreme Court ever overturns Roe v. Wade, then these various and sundry itemized restrictions on abortion in Tennessee will go into effect within 30 days.”  One of those provisions subjects physicians who perform abortions to Class C felony prosecution unless the pregnant woman’s life was in danger when the procedure was performed.

Tennessee also enacted a separate “heartbeat law” in 2020 that bans abortions after six weeks of pregnancy.  This latter law has been the subject of recent litigation in the federal courts, but, this week, the United States Court of Appeals for the Sixth Circuit lifted an injunction that had stayed the implementation of the heartbeat law.  The Attorney General’s office has already taken a victory lap.

All of this is to say that, after Dobbs, the states, as laboratories of democracy, will now lead the way on abortion law and policy.

This underscores an important point about civics education and federalism upon which United States Sixth Circuit Court Judge Jeffrey Sutton has expounded in a couple of recent books, 51 Imperfect Solutions: States and the Making of American Constitutional Law and Who Decides? States as Laboratories of Democracy.  Maddeningly few people ever pursue constitutional cases under their states’ constitutions, including here in Tennessee.  But states can (and do) provide more legal protections in their respective state constitutions than the United States Constitution’s bottom-line “floor,” beneath which states may not go, provides.

So, the first places for Dobbs detractors to look for a path forward are (a) their state legislatures, to either slow or block passage of legislation prohibiting or restricting abortion, or conversely to hasten or enact legislation protecting abortion, and (b) their state constitutions and any amendment process thereunder, to try to amend their state’s charter to expressly protect the right that the Roe Court found in 1973.

Second, the United States Congress may provide some relief.  Although Congress cannot codify a federal constitutional right to abortion privacy by enacting federal legislation–an experiment that religious conservatives failed when Congress enacted the Religious Freedom Restoration Act to try to countermand Justice Scalia’s ruling in Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990), that neutral laws of general applicability that incidentally burden religious practice do not violate the First Amendment’s Free Exercise Clause; in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that RFRA exceeded the boundaries of Congress’s constitutional legislative authority–Congress might be able to use its power to regulate interstate commerce under the Commerce Clause.

My personal views on the current scope of this power, as interpreted by the Supreme Court going all the way back to the Great Depression-era case of Wickard v. Filburn, 317 U.S. 111 (1942), are that the Framers would roll over in their graves if they knew that Congress had the power to enact a law governing virtually any area of human life that substantially affects interstate commerce.  But that’s basically what the law is today under the Commerce Clause, and, to the extent that the patchwork described above emerges, abortion could become, as a legal matter, an activity of interstate commerce to the extent that a pregnant woman in Mississippi must now travel across state lines to California to obtain an abortion.  If that becomes the case, then regulating abortion ostensibly would fall under the purview of Congress’s power to regulate interstate commerce and, under the preemption doctrine, a federal law of abortion would supersede any state law regulating the same.  Expect substantial litigation if this path comes to fruition.

Third, and perhaps finally, the 64% of Americans who opposed overturning Roe, depending on how they are distributed across the country, could band together and focus their political and financial capital on amending the United States Constitution to expressly protect an abortion-privacy right.  Although there are undoubtedly Justices of the Supreme Court of the United States who personally oppose abortion on moral grounds, I would venture a guess that any one of them would give meaning and effect to a constitutional amendment that explicitly protects an abortion-privacy right.  Indeed, originalism is predicated on the notions that (a) the meaning of the Constitution’s text was fixed in time when it was ratified, and (b) what the words meant to the people who ratified them control on questions of interpretation because “We the People” did ordain and establish this Constitution.

And arguably any one of those Justices who personally oppose abortion on moral grounds would prefer that, as a legal matter, the Constitution be amended by one of the specifically enumerated methods of amending it in Article V, just as Congress did in the immediate aftermath of the Civil War.  “Go to the Supreme Court and get a bare majority of nine unelected, life-tenured government officials to agree with your proposal for a national mandate” simply isn’t one of the prescribed methods in the document’s text.  Indeed, this notion animated criticism of the Roe Court’s interpretive methodology and focused the Court’s substantive-due-process inquiries on the nation’s history and traditions, the reasons for which the Rhenquist Court unanimously explained in more detail in Washington v. Glucksberg, 521 U.S. 702 (1997).

Unfortunately, as I learned when working as a professional libertarian in the nation’s capital, too many Americans view amending the Constitution as kooky, unworkable, and even dangerous.  But the lawful methods of amendment are laid out in the constitutional text, where anyone can see them.  And, although the task of amending the Constitution is incredibly hard, it is not impossible–we currently have 27 amendments to the Constitution–and, if I were advising Dobbs‘ detractors, that is where I would suggest they start.  Amending the U.S. Constitution to protect an abortion-privacy right would restore American abortion law and policy to its pre-Dobbs state.