Dashed-Off Daily Dobbs upDate for 7 May 2022
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Elsewhere on the Internet this week, I was involved in a group discussion about Justice Alito’s Draft Majority Opinion in Dobbs v. Jackson, which I have been obsessing over. The quality of the conversation was very good,1 so I decided it was worth putting into a blogletter.
Q’s are real questions asked by real people. A’s are all from me. I have very lightly cleaned them up, but, since this is a Dashed-Off Daily Dobbs upDate, I haven’t touched them much.
There are 12 questions. The first 7 are basically legal, although we get into some very broad discussions about constitutional rights. The next 4 are mostly scientific, regarding the biological status of the fetus. The last one’s a bonus. They are:
- After Dobbs, what is the constitutional basis for protection of same-sex marriage and sexual relations in the US? [Discussion-starter]
- Is Alito allowed to base his decision on the “history and traditions” test from Washington v. Glucksberg?
- What was wrong with Lawrence and Obergefell?
- Isn’t consensual sex a protected “Privilege or Immunity”?
- Isn’t consensual sex protected by the Ninth Amendment?
- Shouldn’t judges be flexible about unenumerated rights?
- Isn’t applying the Glucksberg test like this basically originalism? Doesn’t that have bad consequences?
- Does abortion really “extinguish” a “human life”? Can you cite sources?
- But zygotes aren’t fetuses and souls are not justiciable.
- Calling the fetus alive is absurd!
- But most zygotes die!
- Is the Draft Majority an originalist decision?
Honestly, this is way too much content. I thought about splitting into separate, bite-sized posts, which would keep me flush with content for weeks… but I think it would start to feel spammy on your end. If you aren’t in the mood to read 30 pages of discussion straight-through, I suggest you skim the Question titles and read any that interest you. You can always circle back later, or read just one question per day.
Q1: After Dobbs, what is the constitutional basis for protection of same-sex marriage and sexual relations in the US? [Discussion-starter]
The leak of a draft majority opinion from the US Supreme Court this week gave more support to widespread expectations that the Court will reverse its 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, resulting in swift or immediate abortion bans in many parts of the country. However, in a less clear sign for the future, Justice Samuel Alito also finds weakness in a list of other civil-rights decisions including Lawrence v. Texas (2003), which prevents governments from banning same-sex sexual intercourse (“sodomy”), and Obergefell v. Hodges (2015), which requires governments to give equal recognition to same-sex and opposite-sex marriages:
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U.S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.
(emphasis added)
So if their lack of deep historical roots is a flaw and the “broader right to autonomy” is not a solid foundation, what is the remaining constitutional justification for the Lawrence and Obergefell decisions? How is a right to same-sex relations better supported than a right to illicit drug use or prostitution? Assuming the Supreme Court majority ultimately adopts something similar to the reasoning in this draft, how much of its reasoning in Lawrence and Obergefell is potentially subject to similar reconsideration?
A1
First and simplest, I think you’ve misread the passage you quote. The antecedent of “these attempts” is not the list of cases upon which Casey and the Solicitor General relied themselves.
The antecedents of “these attempts” are Casey‘s attempt and the Solicitor General’s attempt to convert those individual cases, which affirm specific rights, into a broad constitutional “principle that physical autonomy and bodily integrity are integral components of liberty” (Brief of Respondents 18; internal quotes omitted).
Alito is not questioning Obergefell or Lawrence or Loving or East Cleveland. That would actually be really weird, because Alito relies on East Cleveland both directly and indirectly at other points in the opinion (including for the Glucksberg test). Instead, Alito is saying that the recognition of rights to (respectively) gay marriage, consensual sex, interracial marriage, and living with your family (among other rights listed in that long block on Draft Majority Opinion, p31) do not mean that there is a blanket right to “bodily autonomy,” or, at least, if there is such a blanket right, it does not extend so far as to include the right to kill a human fetus in utero. He makes this clear in the very next paragraph:
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. (Draft Majority Opinion, p32)
In fact, Alito goes to considerable lengths in this opinion to avoid calling into question Lawrence, Obergefell, Griswold, or other conservative bogeymen in the postwar line of substantive due process cases.2 One of several passages where he does this is on p62:
Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States as Amicus Curiae 26 (citing Obergefell v. Hodges; Lawrence v. Texas; Griswold v. Connecticut). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.”; see also Roe (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to 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.
This is particularly interesting, because, while Alito wasn’t around for Griswold or Lawrence, he was around for Obergefell, and his dissent at the time was stinging:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
Most Americans–understandably–will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.
This guy thinks Obergefell is a pile of legal crap built upon a mountain of legal crap. Yet he strains (more than once) in his draft majority to distinguish the crap out of Dobbs so as to avoid hitting any of those other opinions.
You may say this is the act of a man trying to hold his majority. You would almost certainly be right! But that, in itself, is telling. Alito does not consider it practical or possible to call a broad range of substantive due process rights into question while simultaneously overturning Roe/Casey.
You may also say that Alito’s attempt to distinguish is legally unpersuasive. The fact that abortion extinguishes a human life is highly relevant to the moral consideration and will feature prominently in the legislative debates that follow if this draft becomes the Court’s decision—but the fact that abortion extinguishes a human life is not legally relevant to the question of 14th Amendment analysis in any obvious way. By terminating the line of cases that at least suggested a blanket right to bodily autonomy, all rooted in the 14th Amendment, this opinion would open that entire line of cases to new lines of legal attack. If challenged directly, the rights protected in each and every one of those cases could be subjected to reanalysis based on the East Cleveland/Glucksberg/Dobbs standard of 14th Amendment analysis, which examines whether the right is “deeply rooted in the nation’s history and traditions”—particularly whether it was protected at the time that the 14th Amendment was proposed and ratified.
This draft majority opinion, however, is neither the time nor the place to litigate that entire line of cases. Nor is this reddit comment! I will only note in passing (I expect uncontroversially) that the right to educate your children found in Pierce v. Society of Sisters is probably going to do okay under the Glucksberg test, but the right to sexual privacy found in Lawrence will have a much more difficult hill to climb.
The future, then, for this line of 14th Amendment cases seems cloudier than it did yesterday, but by no means dark. Many of these cases (in my view) have ascended to the American pantheon of “super-precedents:” cases whose outcomes are so universally accepted that they cannot possibly be overturned even if their legal rationales were completely wrong (as then-Professor Amy Coney Barrett explained in her wonderful paper “Precedent and Jurisprudential Disagreement”).
I’ll expand on that: the judicial system is designed as a set of fences ringed around other fences, all of which protect precedent and the status quo (even if it’s wrong). The sustained attack on Roe/Casey has required the coordinated effort of tens of millions of voters, hundreds of thousands of activists, vast sums of money, thousands of legislators, dozens of state governments, and five decades… and it may yet fail! Where’s the similar network that’s going to launch an attack on (checks the Draft Majority) Skinner v. Oklahoma and “the right not to be sterilized without one’s consent”? There isn’t one. Even if Skinner is wrong, it will stand forever, just like the Legal Tender Cases in Barrett’s paper.
So, for some of these decisions, I think they are really very safe because, even if challenged, they would pass the Glucksberg “history and traditions” test.
For some of the other decisions, I think they are still fairly safe, because they enjoy the best defense any legal precedent can have: insufficient (and insufficiently well-funded) interest in overturning them.
I’ll lay my cards on the table: I think Obergefell and Lawrence were wrongly decided. There is no legal basis for a constitutional right to same-sex marriage or consensual sex. There never was. Even if there were, Justices Stevens and Ginsburg were unfortunately forced to let Justice Kennedy write the majority opinion in order to secure his vote in both cases, and Justice Kennedy is a terrible writer and thinker, so the arguments in the majority opinions were much, much weaker than they could have been. (Solicitor General Verrilli briefly presented a much stronger, albeit still inadequate, argument for the outcome in Obergefell at oral arguments.) Both questions, according to our Constitution, should have been left to legislators to decide.
I also think Obergefell is basically safe, and that the core holding in Lawrence is safe as well. Unlike with abortion (where public opinion has been nearly static for five decades), the plaintiffs in Lawrence/Obergefell have won their case in the court of public opinion. Five years ago ago, there were, I think, only five states left where opposition to same-sex marriage still had majority support. Today, I think there are none. (I don’t have a source for this, sorry automod, so take it with a grain of salt.3) And support for same-sex marriage is still growing. It’s going to level out in the 90% range. States may still fight to chop off further extensions of Obergefell—cases like Pavan v. Smith (affirming that lesbian wife gets to be on the birth certificate of spouse’s biological child) might still arise, and might come out differently—but I just don’t see any political energy against SSM. It’s not 2004 anymore. There’s no way to assail a major Supreme Court precedent like that without lots and lots and lots of political energy.
Naturally, a country that has accepted gay marriage is not going to outlaw gay sex… especially not when doing so poses so many other interesting challenges to popular heterosexual sex practices. (Plenty of old laws against sodomy outlawed heterosexual oral sex, too!) I could imagine a future in which some states decide to revive laws against adultery (which were all disabled by Lawrence). Anti-adultery laws could end up being upheld in some far-future decision that overturns or (more likely) distinguishes and limits Lawrence… but, when you can only find 18% of Americans willing to outlaw consenting gay/lesbian relations, with that number in steady decline, and that’s before you ask whether they want to ban blow jobs as well… that’s a country where the decision in Lawrence is safe, whether or not the legal rationale for it is.
Q2: Is Alito allowed to base all this on the “history and traditions” test from Washington v. Glucksberg?
IANAL4 but it seems to me that Alito is relying heavily on the Glucksberg test without explicitly explaining why the opinion is sound. You might say, oh, well, stare decisis mandates that he abide by what the court said in Glucksberg. But Alito himself qualifies stare decisis in this opinion by saying “proper application of stare decisis required an assessment of the strength of the grounds on which <case> was based.” So he seems to be using stare decisis in the exact same way he laments its use in Casey. Not a good look.
Another weird thing about Glucksberg is that it was decided in 1997. Casey was decided in 1992. The court’s only change in membership during this period was that White and Blackmun left and Ginsburg and Breyer joined. Why would basically the same court opine in such a way to destroy a ruling from just 5 years prior?
The last thing I want to point out is that Alito contends that “Roe and Casey were wrongly decided”. Okay, so he must mean they were wrongly decided at the time, yeah? As in, years before Glucksberg was precedent? How can you use a future opinion that was not available to the court as it decided Roe and Casey to argue it erred in overlooking the logic behind that opinion?
A2
Okay, so he must mean they were wrongly decided at the time, yeah? As in, years before Glucksberg was precedent? How can you use a future opinion that was not available to the court as it decided Roe and Casey to argue it erred in overlooking the logic behind that opinion?
Ah, yes, fair question!
Glucksberg is not the first in a line of cases that endorsed the “deeply rooted in our history and traditions” test. It is just the one that has (for whatever reason) become canonical. (Officially, probably because it had the most careful analysis of the judicial principles that had been floating around for a long while before it. Unofficially, probably because it has the best pull quotes. 🙂 )
Glucksberg itself, for various versions of the “deeply rooted in history and traditions” quote, cites… deep breath, Rochin v. California (1952), Palko v. Connecticut (1937), Snyder v. Massachusetts (1934), Harlan’s dissent in Poe v. Ullman (1961), Griswold v. Connecticut (1965), Loving v. Virginia (1968), Roe itself (which engaged in historical analysis for the same reason Alito did: to find whether or not there was a Glucksberg-style deeply-rooted abortion right in our nation’s past), Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923), and Moore v. East Cleveland (1977) (which was probably the most important case for what would become known as the Glucksberg test prior to Glucksberg itself).
I’d include the quotes from each of those opinions, but it would take ages [and this post is plenty long enough]. Suffice to say that what we all today call the Glucksberg test is quite a bit older than Glucksberg (and, according to Glucksberg itself, it would have to be! if the test itself weren’t deeply rooted in history and tradition, it wouldn’t be a valid test!), even though it arguably achieved its clearest form in Glucksberg. Casey was, even in 1992, obliged to follow the prior case law, but mangled it severely.
IANAL but it seems to me that Alito is relying heavily on the Glucksberg test without explicitly explaining why the opinion is sound. You might say, oh, well, stare decisis mandates that he abide by what the court said in Glucksberg. But Alito himself qualifies stare decisis in this opinion by saying “proper application of stare decisis required an assessment of the strength of the grounds on which <case> was based.” So he seems to be using stare decisis in the exact same way he laments its use in Casey. Not a good look.
I can see how that would seem like not-a-good-look! A couple of points:
First, the Court typically only considers stare decisis when one of the parties either directly challenges a precedent, or unavoidably collides with one. Courts cannot possibly base every outcome on a from-first-principles reasoning of what the law is; every opinion would have to be longer than the U.S. tax code, proving everything from Marbury through the latest precedents over again! So they take precedents as read unless challenged. Challenge triggers stare decisis examination.
(Fun fact: I think, if you add them all up, fully one-fifth of all concurrences by Justice Thomas end up being short statements where he says something like, “The majority’s decision in this case is based on Precedent X. I think Precedent X is totally wrong possibly open to question in future cases. However, since the issue was not raised by either party, I agree that Precedent X sufficiently answers this question and concur with the Court’s outcome on that basis.” Anyway.)
In the Dobbs abortion case, Mississippi directly challenged Roe and Casey. It did not challenge Glucksberg. In fact, its brief to the Court relied heavily on Glucksberg. Jackson Women’s Health Org (the respondent) had the opportunity to reply to this. They could have challenged the Glucksberg standard, which would have forced a reconsideration of Glucksberg. Instead, respondents affirmed Glucksberg, by citing it in their own brief. So everyone agreed going in that Glucksberg was good law, and an appropriate standard under which to judge Roe and Casey. Roe and Casey were the only precedents challenged, so they went under the microscope.
In fairness to Jackson Women’s Health: that was almost certainly the right move. Glucksberg was unanimous in 1997, and I believe it would still be unanimous if re-decided today. (It did have five separate concurrences, though—for only four justices outside the majority!—so the Court was not in perfect agreement at the time.) The question was never Glucksberg‘s principles, but how they should be applied in this case.
Second, I think it’s worth considering what would happen if Alito did not follow the Glucksberg test. If he did stare decisis analysis of Glucksberg and decided to reject it, that would not really help Jackson Women’s Health. The Glucksberg Test is the means under current precedent by which unenumerated rights (such as the right to abortion) are recognized under the Constitution. If you blow up the Glucksberg Test, you either have to invent a new test on the fly out of whole cloth against quite a lot of precedent, or you have to say, “okay, no unenumerated rights from this line of cases at all!” That would foreclose the right to abortion right off the bat, and Alito would get to delete half his draft opinion. (I suppose he’d still need to deal with the “ordered liberty” claim later on.) So forcing Alito to do stare decisis analysis of Glucksberg would be very, very unlikely to help the right to abortion, and could potentially damage it quite badly.
Another weird thing about Glucksberg is that it was decided in 1997. Casey was decided in 1992. The court’s only change in membership during this period was that White and Blackmun left and Ginsburg and Breyer joined. Why would basically the same court opine in such a way to destroy a ruling from just 5 years prior?
That’s a question so many justices have asked of so many courts, so many times, in so many cases. Sometimes rightly, sometimes wrongly!
Justices are human and make errors and aren’t always consistent with their own principles. Sometimes, they even cite their own past cases in cases where they apply new principles that clearly contradict the old ones. Future justices then have to try and figure out / decide which decisions followed the continuity of precedent and which were deviations out of a messy history.
Also, Casey was a realllllly fractured decision. It was technically 5-4, but portions of the controlling opinion were only joined by 4—in some places just 3!—justices. There were 6 dissenters writing 4 separate dissents (although all 4 dissents concurred with some part of the judgment and/or the plurality opinion). Some dissents were from the “left” of the plurality, some from the “right.” Casey is therefore an example of a case where the Court reached a decision, but it had a very hard time deciding why that decision was correct (and pretty much everything about it was decided 5-4—some for the right, some for the left). Such fractured decisions tend to get clarified somewhat in later cases, as future, firm majorities decide which parts of the fracture become lasting principles and which are jettisoned as judicial jetsam.
It’s therefore not surprising to see a decision a few years after Casey that both cites Casey and is in tension with it. Casey was in a lot of tension with itself.
Q3: What was wrong with Lawrence and Obergefell?
You said:
I’ll lay my cards on the table: I think Obergefell and Lawrence were wrongly decided.
Could you expand on that? Do you mean with respect to the interpretation/ application of law, and if so what would have made a stronger case?
A3
Do you mean with respect to the interpretation/application of law
Yes, that is what I mean. Sorry, should have been clearer about that.
Could you expand on that?
I could, but I think the dissents in each case reflect my thinking better than anything I could write in the space of a reddit comment. There is a long tradition in American law of legally correct dissents losing to erroneous majorities, and I think the Lawrence and Obergefell dissents are part of that tradition.
The Lawrence dissents (I subscribe to both) begin on p586 of the U.S. Reports, Volume 539.
You can skip Section I of Scalia’s dissent, though. That whole section is just him taking the majority for task for stare decisis hypocrisy in Casey. He and I and Alito and the Lawrence majority all basically agree with the stare decisis approach taken in Lawrence.
The Obergefell dissents are rather more complicated, with some of them critiquing the majority on narrow grounds and some on quite broad grounds. Frankly, I don’t want to reread all of them today to remind myself which parts of each were (in my view) correct. If memory serves, Roberts’ lead dissent aligned well with my thinking. Indeed, it follows similar contours as Alito’s Draft Majority for Dobbs: start with the Glucksberg test, point out that abandoning Glucksberg invites abuse, cite Lochner as an example and beat up on Lochner for a few pages, etc. etc. Sections I, II, and III are the relevant ones for our purposes. (Section IV is a critique of judicial arrogation of power, which isn’t analyzing the Constitution but discussing the consequences of doing it badly.)
That dissent starts on… agh, I don’t have the USR printing from the Library of Congress, but I have the slip opinion. Roberts’ dissent starts on page 40 of that PDF.
what would have made a stronger case?
Double-agh, I wrote a reddit comment about this years ago, but reddit search is SO BAD, and I can’t remember which part of Solicitor General Verrilli’s argument was the key one, and I’ve run out of time to check.
If memory serves, my basic suggestion was that the majority should cut absolutely everything about due process and focus solely on equal protection, rather than focusing mainly on substantive due process and treating equal protection as a real clouded afterthought. There’s a lot more grounding in Loving v. Virginia and the gender-equality cases of the 1970s/1980s than there is in the penumbral analysis of the substantive due process cases. Ginsburg was an Equal Protection Clause maven and could have (and probably would have) written that opinion, had she been free to do so. Verrilli definitely gestured toward it at orals, and then got dragged back to sweet-mysteries-of-life discourse with Anthony Kennedy.5
Q4: Isn’t consensual sex a protected “Privilege or Immunity”?
You say:
There is no legal basis for a constitutional right to… consensual sex.
What about the privileges and immunities clause, which Corfield v. Coryell interpreted as protecting fundamental rights:
What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
How could consensual sex not be covered under “the enjoyment of life and liberty” or “happiness”?
A4
I think the immediately preceding sentence from Corfield sheds some light on this:
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate…
The examples given are also instructive:
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions that are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
(and, yeah, this is all from the paragraph quoted on Wikipedia, which as far as I can tell is the only paragraph anyone ever cites and the only one that has bearing on decisions today. Full decision is here, though, if you wanna look.)
These rights were all universally enjoyed and recognized by all the states, and had been since the dawn of the Republic. (They remain so today!) Was consensual sex a similarly situated right?
Corfield was a decision regarding a regulation in the state of New Jersey. At the time Corfield was handed down, all sex outside of marriage, consensual or not, was subject to regulation.
Fornication had not been a crime at common law, but the power of the sovereign to regulate it anyway was not questioned (and it was also regulated by the ecclesial courts, which were not powerless in England):
In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy. But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law * * . [W. Blackstone, Commentaries, Book IV, Ch. IV, []64-65]
The state of New Jersey outlawed fornication in 1704. That law was in force in 1823, when Corfield was decided. The law against fornication continued in force in 1866-68, when the Fourteenth Amendment (which includes its own separate and more potent privileges & immunities clause, and is the one typically used for incorporating liberties against state action today) was proposed and ratified. The New Jersey statute would in fact remain in force until 1977, when it was struck down by… the New Jersey Supreme Court, which in turn was largely inspired by the Griswold/Roe/Eisenstadt/Carey/Danforth line of cases.
This is a pretty common story, with a wide variety of sexual crimes. The history in each state varied… some outlawed consensual fornication, some consensual adultery, some consensual heterosexual sodomy, some (all?) consensual homosexual sodomy (I don’t know my history on that one as well as I should), some several, or all four… but consensual sexual activity was simply not understood as a “fundamental privilege or immunity” which “belong, of right, to the citizens of all free governments.” The putative right to consensual sex certainly had not, “at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”
…or, at least, if there was a fundamental right to consensual sex, it was limited in scope to intercourse (not sodomy) within the bonds of (heterosexual) marriage. That’s a possible interpretation here.
All other sexual activity was subject to “such restraints as the government may justly prescribe for the general good of the whole.” Until fairly recently, a sovereign’s plenary authority to prescribe legislation for the moral health of its subjects was pretty nigh unquestioned. I disagree with a lot of it (although I’m actually a fan of the anti-adultery notion, at least in principle), but this was how they regulated it. If you were to argue that you need consensual nonmarital sex to enjoy “life and liberty” or “happiness,” I would imagine that most judges at the time would tell you that there was something deeply, deeply the matter with you, and that you needed to get your head on straight before you came back in their courtroom.
So consensual sexual activity was not understood to be a fundamental privilege or immunity at Independence (when we absorbed the English common law as the undercurrent of our future case law), it was not understood that way when the Constitution was proposed and ratified with the original “privileges and immunities” clause, it was not understood that way when good ol’ Bushrod Washington (at the end of his career, riding circuit solo) interpreted that clause for Corfield, it was not understood that way when the Fourteenth Amendment (which doubled down on the P&I clause and incorporated it against the states) came down, and no subsequent provision of the Constitution has changed that.
Thus, this concept cannot suddenly become a Privilege or Immunity under the Fourteenth Amendment when Lawrence shows up. The Lawrence court, rather than applying the time-honored principles of P&I interpretation dating back to Corfield, applied the even older judicial principle of making crap up. At least, that’s my view and, though not in so many words, the dissenters’ view as well.
To be clear and for the record: like Justice Thomas, I think that the law against homosexual sodomy struck down in Texas was a bad law and I oppose it. Had I been a legislator, I would have voted to repeal it. All I am saying is that the Supreme Court of the United States lacked proper authority to strike it down.
Q5: Isn’t consensual sex protected by the Ninth Amendment?
You speak at length about a lack of constitutional basis for these rights, but I wonder how you respond to the fact that the Constitution does not limit the people’s protected rights to those enumerated explicitly.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
~ 9th Amendment
This is, after all, pretty much an explicit statement of the “penumbra of rights” which stands as the real basis for most of these decisions.
(This should not be construed as a statement on the quality of the legal reasoning in those decisions, but rather a question about unenumerated rights conceptually)
A5
Great question. I have long felt that Justice Scalia’s dissent in Troxel v. Granville is the most succinct answer to the judicial question of the Ninth Amendment:
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Lest you think I just read conservatives, here also is Justice Douglas (who wrote the Griswold majority) writing in his concurrence to Doe v. Bolton, the lesser-known companion case to Roe v. Wade:
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Douglas goes on to argue that unenumerated rights are enforceable through the Fourteenth Amendment’s due process clause, not through the Ninth Amendment (and then he gets on with listing which unenumerated rights he personally believes in). I like that quote, though, because it’s even shorter than Scalia’s. A bit conclusory, but what a beautifully clear statement of the situation: “The Ninth Amendment obviously does not create federally enforceable rights.”
However, it’s worth considering the alternative view anyway, because I think that alternative view shows its own absurdity rather quickly.
Let us suppose, for the sake of discussion, that our 9th Amendment rights were judicially enforceable. How would we determine what those rights actually are? There are so many candidates: the right to an abortion, the right to health care, the right to contract, the right to work, the right to sex with consenting adults, the right to refuse vaccination, the right to go whatever the hell speed I want on the highway speed limits be damned, the right to an education, the right to build what I want how I want on my property, the right to housing, the right to evict, the right to transport your property through federal territory even if your property is illegal in that territory (the issue in Dred Scott v. Sandford), the right to safety, the right to sex with consenting non-adults, the right of a father to his child (potentially a veto over the abortion right), the right to conscientiously object to paying taxes…
…and this list can really probably go on forever, because someone, on some reasonable-sounding theory, has advanced an understanding of liberty that nullifies any given law you care to think of or imagine.
How can judges decide which candidate rights are 9th Amendment rights and which ones are not? It seems to me that there are three possibilities:
- Judges could take the view that all liberties proposed to be part of the 9th Amendment are, in fact, protected by the 9th Amendment, and act accordingly. This would impose a rather extreme form of libertarianism on the entire United States. Think Murray Rothbard, but constitutionally mandated. There would still be many conflicts between proposed rights, however (you can see several conflicts in that list), and it is not clear how they would be resolved. This—combined with the possibility of judicially enforceable positive rights—would effectively usurp and centralize plenary legislative and executive power (at all levels) within the federal judiciary.
- A second alternative is to treat some proposed 9th Amendment rights as judicially enforceable, but only those which can be shown by historical analysis to have been recognized throughout our nation’s history, and especially when the 9th Amendment was ratified. In other words: 9th Amendment rights are judicially enforceable if they are “deeply rooted” in our nation’s “history and tradition,” to use the terms Alito and the court generally use when doing 14th Amendment analysis.
This ends up being no different from the Court’s existing 14th Amendment jurisprudence. It is different in theory from Scalia’s rejection of enforcing the 9th Amendment (because you would be recognizing some 9th Amendment rights as judicially enforceable), but in practice is identical (because you would only be recognizing rights as enforceable that are already recognized and enforceable under the 14th Amendment). - Finally, judges could decide that liberties proposed to be part of the 9th Amendment are part of the 9th Amendment if they (the judges) feel strongly that they should be. That may sound unfair, but, if the analysis is not tied to history & tradition, and it is not tied to doctrinal, consistent libertarianism, then any obvious criteria the justices might use to narrow their search for 9th Amendment rights are arbitrary and subjective.
This is… kind of where the U.S.’s current penumbral discourse is right now. It seems to be the premise of Heidi Schreck’s speech-that-thinks-its-a-play, What The Constitution Means To Me (available on Amazon Prime and a fascinating watch). This approach doesn’t centralize legislative and executive power in the judiciary like the libertarian view, but, because there are no clear standards, and a great deal of moral intuition involved, I think it very quickly reduces to what Alito in this draft (citing Powell in East Cleveland, citing Harlan in Griswold, citing Franfurter in Adamson) described as “freewheeling judicial policymaking.”
The judiciary ends up as a kind of super-legislature, with an ultimate veto over all other parts of government, based not on the law, but on the Court’s moral authority. This is all well and good if people who agree with you control the super-legislature—but, if people you don’t agree with control it, welcome back to the Lochner era, baby! Where minimum wage laws aren’t just rare: they’re literally unconstitutional because they offend the justices’ sense of morality!
Thus we see that all approaches that make the 9th Amendment judicially enforceable either go nowhere (#2) or go to very bad places and our republic turns into a juristocracy (#1/#3). This perhaps makes the conclusion that the 9th Amendment is not judicially enforceable quite a bit easier to swallow.
I add, finally, that the 9th Amendment says the rights it protects are retained, finally, by The People. The People are its final arbiters. If The People determine, collectively, that their rights are being infringed, they do have the power to make their rights judicially enforceable. This can be done by state or federal statute, or, where salutary, by constitutional amendment. Most of our 9th Amendment rights (like the right of both sexes to have equal access to public education) are indeed protected by statutes, passed through the democratic process (like Title IX), rather than by the Constitution.
Q6: Shouldn’t judges be flexible about unenumerated rights? [follow-up to Q5]
I appreciate the amount of time and thought you put into your comments, but I disagree with the foundation of it, which is that history and tradition is the end point. While history and tradition are valuable and powerful starting points (well, second steps after the text, but the issues at hand are textually vague enough that the text itself isn’t particularly helpful), they’re just that. Starting points.
The argument that you’re making seems to always end up at “what did the people who wrote this intend?” Yet it also ignores some major considerations. The authors of the Bill of Rights fully intended for there to be a robust set of personal rights that are unenumerated. Many of them didn’t want a Bill of Rights at all because they wanted to avoid the very issue we are dealing with now: arguments that a right not being explicitly enumerated means that it doesn’t exist. That was the entire point of putting the 9th Amendment in to begin with. Even the 10th Amendment ends with “or to the people,” though it seems like that clause has largely been ignored.
Additionally, at least some of the Founders explicitly stated that our institutions must “keep pace with the times.”
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson
The Supreme Court, and their interpretation of the laws, would almost certainly fit under Jefferson’s statement as one of the institutions that must advance. So while history and traditions are important, so is progress and adapting to new cultural norms. Even in your own comments, that is why you state a number of other cases like Lawrence and Obergefell are unlikely to fall.
Trying to base one’s interpretation of Constitutional text on what the ratifiers of that text intended is, realistically, something of a fool’s errand. While it’s convenient to view Congress as a single, unified entity, that has never been the case. Some who signed to ratify did so believing that it would be constrained to the narrowest possible interpretation, while others signed with the expectation that more expansive interpretations would be used. The reality is that many parts of the various amendments are intentionally vague because the ratifiers wouldn’t agree on more precise language because they had to be able to see their own interpretation fit within the text. Whose interpretation, then, are we to follow as the intent?
Finally, the idea that the founders didn’t expect the courts to make law is historically inaccurate. America has always been a common law country. Early legislatures did (compared to later eras) very little lawmaking because the law was largely created through court precedent, created by judges. I would be very skeptical about claims that the writers of the Constitution, if asked whether the courts were able to identify and establish unenumerated rights, would say that that wasn’t part of the courts’ roles.
I won’t say that you’re wrong that there is no clear answer to the question of what unenumerated rights exist. But that doesn’t mean that, lacking clear and precise guidance, the judiciary cannot or should not try to find those answers. I think that your three categories are unnecessarily restrictive. The reality is that there is probably always going to be a blending of all of them. There will be influences of libertarianism, but not an extreme and unmoderated one. Rights underneath that approach are inevitably going to be constantly conflicting with one another, though, so the contours inevitably are shaped by balancing rights, and that approach is going to fail under certain arguments, including some of the hypotheticals you listed. History and traditions are going to be persuasive and the source of certain recognized rights, but not necessarily conclusive. The reality is that this country has a lot of problematic histories and traditions that shouldn’t be the source for either granting or taking away rights. And yes, there will times where judges’ moral judgments come into play, but that should also be tempered by the other considerations. The reality is that any any unwavering, inflexible system is not going to be able to handle all situations.
Are those difficult problems that the courts will have to tackle? Absolutely, but that’s why they are (at least theoretically) supposed to be impartial and highly skilled in order to get into those positions (though obviously that doesn’t always happen). And if the courts get it wrong, the legislature has the ability to take actions to correct that.
A6
The authors of the Bill of Rights fully intended for there to be a robust set of personal rights that are unenumerated.
Absolutely! But did they intend for those rights to be enforced by the unanswerable will of judges? That’s the question.
You say yes, these rights should be enforced by judges, not by voters, and you make an argument for that. It’s not an unreasonable argument. I don’t really see how you can say that Lochner was wrongly decided, given your argument, but perhaps that’s a price you’re willing to pay. I also don’t think your argument really deals with the text of the 9th Amendment, which really seems to track Scalia/Douglas’s interpretation better than yours, but perhaps you’re thinking more about how unenumerated rights should be handled in the abstract.
Instead of trying to refute your argument, let me instead ask you this:
Suppose Alito agreed with you. Rather than determining that history and tradition are the only reasonable basis upon which to base 14th Amendment rights, Alito and the other four in the majority begin determining the contents of the 9th Amendment and enforcing those rights on their own recognizance. Based on who they are and what they believe about law, life, and morality, they would obviously still decide that the right to abortion is not included in the 9th Amendment, so Roe would still fall.
But now your standard has unleashed four devout Roman Catholics and an Evangelical to find whatever they might look for in the 9th Amendment. How about a right to an education voucher, in lieu of everyone paying into the public school system? Or the right of a state to control their own territories, forcibly expropriating federal land used for nature preserves, etc.? Or the right of a spouse to be secure in the vows of his or her partner, unilaterally outlawing no-fault divorce?
If we are no longer bound to the text-history-and-tradition standard, but instead are permitting the justices to “tackle difficult problems” in freewheeling policy-making expeditions (like the one undertaken in Roe and the one undertaken in Obergefell), then it is pretty easy to come up with reasonable arguments for why all those things should be constitutionally mandated by the 9th and 14th Amendments. Sotomayor and Kagan and Co. would not find these arguments very attractive, but the current majority would!
Assuming these five judges honestly attempted to balance their perception of evolving cultural norms against the text and history and tradition and against their own moral codes, would you have a problem with that? If so, how could you fault them?
I would have a problem with that. I think justices are bound to follow the law, according to the meaning it had according to ordinary English speakers at the time of adoption. You are of course correct that there is still considerable wiggle room within that constraint, but it is a constraint—enough of one to prevent either the progressives or the conservatives from just imposing whatever policies they happen to feel are important on an unwilling nation.
And if the courts get it wrong, the legislature has the ability to take actions to correct that.
Well, no, they really don’t, and that’s the whole point. If a court interprets a statute wrong, the legislature can indeed correct it. But what you are proposing is that the Court interpret the U.S. Constitution very freely to include a wide range of things it doesn’t obviously say.
When a court gets the Constitution wrong, the legislature has no effective recourse. It’s options are: (a) court-packing (a short-term solution at best), (b) impeachment (inappropriate vehicle), and (c) constitutional amendment (extremely difficult even when supported by huge majorities: requires super-majorities in BOTH houses of Congress PLUS ratification by 75% of the states). That’s why it’s extremely important that the Court interpret the Constitution gingerly, and, as Alito argues in this draft (citing many other prior decisions that said the same thing), the Court must be quick to pull back when it interprets the Constitution incorrectly.
Q7: Isn’t that originalism? Doesn’t that have bad consequences?
You said:
So consensual sexual activity was not understood to be a fundamental privilege or immunity at Independence (when we absorbed the English common law as the undercurrent of our future case law), it was not understood that way when the Constitution was proposed and ratified with the original “privileges and immunities” clause, it was not understood that way when good ol’ Bushrod Washington (at the end of his career, riding circuit solo) interpreted that clause for Corfield, it was not understood that way when the Fourteenth Amendment (which doubled down on the P&I clause and incorporated it against the states) came down, and no subsequent provision of the Constitution has changed that.
This basically boils down to originalism. Which is fine and logically defensible, but
To be clear and for the record: like Justice Thomas, I think that the law against homosexual sodomy struck down in Texas was a bad law and I oppose it.
So what recourse would people have if the supreme court had not struck down these bad laws, albeit with non-originalist arguments? The states clearly would not repeal. Jim Crow could’ve lasted a lot longer. We continually see law passed by gerrymandered minority rule in many states, etc. In all those cases, bad law is allowed to persist because there is no constitutional protection, ignoring the fact that all prior decision makers would have supported said bad laws. Not to mention the only reason public opinion shifted so quickly is because bad laws were overturned. Otherwise, there’s nothing to say that bad laws wouldn’t have shifted opinion the other direction.
A7
So what recourse would people have if the supreme court had not struck down these bad laws, albeit with non-originalist arguments?
The same recourse the Founders expected to vindicate virtually all our rights: the ballot box.
We continually see law passed by gerrymandered minority rule in many states, etc.
Texas in 2003 was not a gerrymandered minority-rule state. The majority had the power to repeal the law. They should have done so. They did not. That’s on them. Fortunately, when the people do bad, there is recourse: ongoing democratic debate changes minds and ultimately leads to new legislation.
When the courts do bad — and, remember, historically, the courts do bad at least as often as they do good (Plessy, Schenck, the Insular Cases, Hammer v Dagenhart, Bradwell v Illinois, Dred Scott, Korematsu, Buck v Bell, Lochner, Minersville, and on and on and on) — there is no recourse save impeachment or constitutional amendment. Thus, as difficult as democratic-republican government is, it is usually better to vest decisional power in legislators and voters than in the courts.
The exception to that is Jim Crow, which was entrenched in so many ways that it prevented the democratic-republican system from functioning. Crushing that, through both federal legislative and federal judicial power, was appropriate. But I think that the great and well-deserved success of the civil rights movement has, to a large extent, warped our brains about how our system of government works when it is working best.
This basically boils down to originalism.
Do you think so? I am not convinced. While I confess that I am myself an originalist, the Glucksberg “history and tradition” test reaches back well before Glucksberg itself, and well before originalism emerged in the 1980s.
The Court that handed down Moore v. East Cleveland in 1977 had never heard the term “originalism” (which would not be coined until 1980), and would have mocked it openly had it been suggested to them. (They may have heard of Robert Bork’s 1971 paper, “Neutral Principles and Some First Amendment Problems,” which more or less kicked off the originalist movement, but they clearly did not agree with it.) Yet they endorsed the history and tradition test. Certainly the Courts which handed down Rochin and Palko and Snyder, in some cases generations before self-conscious originalism emerged (and long after self-conscious originalism had died), nevertheless supported the history-and-traditions test. The 3-justice concurrence in Griswold—a major case in the originalist anti-canon—relies on the history-and-traditions test pretty heavily!
I certainly agree that originalists get along very very nicely with the history and traditions test, and my view of it is likely skewed somewhat by my pre-existing commitment to originalism. But plenty of non-originalists have agreed with the Glucksberg test. (And plenty of originalists reject it: Justice Thomas, the Court’s unflinchingest originalist, rejects substantive due process rights altogether, although he’s willing to rebuild rather a lot of that infrastructure through the P&I clause.)
Not to mention the only reason public opinion shifted so quickly is because bad laws were overturned.
Not a huge deal, I guess, but I don’t think this is the case at all. Public opinion on same-sex marriage had been shifting rapidly since the 1990s, and continued to do so after Lawrence. (If anything, there was a bit of a slowdown around the time of Lawrence.) Meanwhile, in the years after Roe struck down all abortion laws, public opinion has not moved at all in the direction of abortion liberalization.
In my opinion, same-sex marriage advocates won in the democratic arena because (in the context of an America where heterosexual marriage was no longer centered on procreation, where contraception was a basic part of life, where divorce and remarriage had become commonplace, where both women and men now participated in the career world), the traditional definition of marriage simply made no sense anymore. “Traditional marriage” was no longer founded in anything Americans valued, and therefore the rationale for excluding same-sex couples from it no longer existed. In other words, same-sex marriage advocates won because they had the stronger arguments, and, as Churchill said, “You can always count on the American[ people] to do the right thing, after they have tried everything else.”
Q8: Does abortion really “extinguish” a “human life”? Can you cite sources?
The fact that abortion extinguishes a human life
I am not sure there is universal agreement this is a fact. Majority of Americans seem to believe otherwise, at least in the early stages of pregnancy. Can you cite an unbiased source?
A8
Sure!
The claim that a fetus is a human life is supported by:
Zygote. This cell, formed by the union of an oocyte and a sperm, is the beginning of a new human being. The expression fertilized ovum refers to a secondary oocyte that has been impregnanted by a sperm; when fertilization is complete, the oocyte becomes a zygote.
—Moore and Persaud, Before We Are Born: Essentials of Embryology and Birth Defects, 7th Edition. Philadelphia: Saunders, 2008. p.2.
“In that fraction of a second when the chromosomes form pairs, the sex of the new child will be determined, hereditary characteristics received from each parent will be set, and a new life will have begun.”
—Kaluger and Kaluger, Human Development: The Span of Life. St. Lous: C.V. Mosby, 1974. p.28-29
“Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte.
—O’Rahilly and Müller, Human Embryology and Teratology, 3rd Edition. New York: Wiley-Liss, 2001. p.8.
The claim that abortion extinguishes that human life is, I trust, uncontroversial.6
Much of the debate among Americans about abortion is not about whether the human life being extinguished is human or alive. That question is biological, and has been conclusively answered since the early nineteenth century.
Rather, the American abortion debate is largely about whether the human life extinguished is a person with moral value and/or a soul. This is a philosophical question. The Casey decision purported to decide for the entire American people that no legitimate answer was possible. The Dobbs draft majority opinion has no answer to that question, and does not attempt to address it at all, but rejects Casey’s assertion that the courts have the authority to foreclose democratic debate over it.
Q9: But zygotes aren’t fetuses and souls are not justiciable. [follow-up to Q8]
Thank you for providing sources. I believe some of the controversy does still exist in that a zygote is not a fetus and there is a large difference between an actual human life, and a clump of cells that might eventually become a human life. I do not think the majority of Americans would agree that in the moments after fertilization, but prior to implantation for example, that there is another human life yet.
When a soul is created, or whether souls exist at all does not seem like the kind of question any US court should be addressing. Not even all major religions agree on this point. And a great many apparently soulless individuals seem to go about their lives notwithstanding.
A9
When a soul is created, or whether souls exist at all does not seem like the kind of question any US court should be addressing.
Yes. This is precisely Justice Alito’s point when he criticizes Casey‘s decision to address that question.
I do not think the majority of Americans would agree that in the moments after fertilization, but prior to implantation for example, that there is another human life yet.
That may be the case. I haven’t looked at polling for this recently. Nevertheless, with all due respect to the American people, they are objectively and demonstrably wrong. Human life begins during or just after conception. The American people are entitled to their own opinion about whether or not that human life has any value or rights, but they are not entitled to their own facts on the biological question of whether the zygote is a living human organism.
As a language note: “fetus” is colloquially used to refer to human lives at all stages of prenatal development (zygotes, embryos, fetuses). You are correct that this is medically inaccurate, because these are all technically different stages of development.
However, the correct, scientifically accurate English word for a human at any stage of prenatal development is “child” or, specifically, “unborn child”. Many people find this terminology needlessly inflammatory. So I tend to use the colloquial “fetus” instead.
Q10: Calling the fetus alive is absurd!
The question is nowhere near as settled as you make it out to be. An embryo doesn’t meet one of the key criteria for life: the ability to maintain homeostasis. Organisms must be able to maintain a stable internal state, take in nutrients, emit waste and maintain various biological functions. Since a fetus cannot do this without the mother, its status as alive independent of the mother is debatable. In this regard, a fetus is a part of the mother, just as much as her arm is.
You base your argument in genetics, but there’s documented cases of, for example, human chimerism: one person has two different sets of DNA.
Under this argument, this seems like someone with chimerism would legally be two people: they’d have two votes, if they were murdered, it’d be a double homicide. This is IMO a kind of silly result.
Similarly, if we consider a human to be a cluster of cells that share DNA, then there are cultures of human cells, with human genes that are continually grown in a petri dish even though the donor is long since dead. I don’t think that we would consider Henrietta Lacks to be alive just because there’s cells of hers that continue to exist in petri dishes around the world.
A10
The question is nowhere near as settled as you make it out to be.
The view I have stated is the overwhelming consensus of professional biologists in the academy today. (Source) This is settled science. (That’s one reason why I was able to cite biology textbooks stating my thesis clearly, and you were not.)
Now, settled science—like settled law—can be unsettled by new developments and new ideas. Perhaps, someday, your view will be vindicated. But your view, today, can be characterized, at best, as quixotic.
An embryo doesn’t meet one of the key criteria for life: the ability to maintain homeostasis.
Yes, an embryo maintains homeostasis. I would be interested in seeing an expert scientific source that claims otherwise.
Homeostasis is the maintenance of a consistent internal environment. It is not freedom from external dependency, as you seem to have misunderstood it. If it were, quite a lot of living things would suddenly stop counting as alive. Tapeworms, for example, cannot survive without a host. This does not make them part of the host organism. It does not erase their status as living tapeworms.
You base your argument in genetics
To be clear: I do not base my argument in genetics. The scientific community invests considerable importance in genetics, and I am informing you of its view.
(My own personal view of the beginning of life is much more Aristotelian. While the scientific community considers human life to begin at or around syngamy, at the end of the roughly 24-hour fertilization process, I personally think human life begins at cell fusion, at the very start of fertilization. My personal opinion, however, is neither here nor there.)
Under this argument, this seems like someone with chimerism would legally be two people:
Although the scientific community places more importance on genetics than I do, this substantially overstates their view. Every set of DNA is not its own person. Every human organism is its own person, and, here on Earth, DNA is a typical telltale of status as an organism.
Similarly, if we consider a human to be a cluster of cells that share DNA, then there are cultures of human cells, with human genes that are continually grown in a petri dish even though the donor is long since dead.
This, again, overstates the DNA-centricity of modern embryology — although it is a somewhat common mistake. I have heard similar objections raised about human toenails and human cancers, all of which share human DNA and which are (at the cellular level) alive as well. Yet very few people would say that a human cancer is a living human organism.
So what distinguishes a human zygote (or, for that matter, a human eight-year-old) from a human toenail? For purposes of a brief comment, let’s point to two key differences: growth and reproduction.7
Toenails grow. So do eight-year olds. But what do they grow into? If properly nourished, eight-year-olds will grow, of their own accord, into adults of the species homo sapiens. Toenails, if properly nourished, will grow, of their own accord, into… longer toenails. This is a strong indication that eight-year-olds are homo sapiens, while toenails are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens.
Cancers grow. So do zygotes. But what do they grow into? If properly nourished, zygotes will grow, of their own accord, into adults of the species homo sapiens. Cancers, if properly nourished, will grow, of their own accord, into… more cancer. This is a strong indication that zygotes are homo sapiens, while cancers are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens.
Not even individual sperm and egg cells will grow, on their own, into adult humans; they will merely undergo meiosis. Only by combining the two, destroying them in the creation of the new zygote organism, will you get an entity that is destined to become an adult human.
Let’s now consider reproduction.
Do toenails and cancers reproduce? No. (Cancers metastasize, but that’s not the same thing as reproduction.) This means that neither toenails nor cancers are actually alive, much less living human beings. (Individual toenail and cancer cells are alive, sure, but, all together, they do not form a living organism… because actually living things, by definition, can reproduce themselves.)
Do eight-year-old human children reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most eight-year-olds will reproduce. And to what will they give birth? Tiny members of homo sapiens, of course. A good rule of thumb in biology: if your babies are horses, you’re probably a horse. If your babies are human beings, you’re probably a human being. Today’s eight-year-old kids will give birth to tomorrow’s human beings. This implies that the eight-year-olds themselves are human beings.
Do zygotes reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most zygotes will reproduce. And to what will they give birth? Not horses. Not toenails. Not gametes. Babies. Today’s zygotes will give birth to tomorrow’s human beings. This implies that human zygotes are themselves human beings.
Of course, many zygotes die before they become adults. However, many eight-year-olds also die before they become adults. This does not make them less human. It just makes them less fortunate.
Q11: But most zygotes die!
But what do they grow into? If properly nourished, zygotes will grow, of their own accord, into adults of the species homo sapiens.
Obviously I’m not disagreeing with this statement, but it does make me wonder, not EVERY pregnancy grows into a viable Sapien. Around 10-20% of pregnancies in the US end in a miscarriage. I don’t think it would be easy to prove that this is solely due to mistakes made by the mother during or before pregnancy (smoking, drinking physical activity, a million things could contribute both before and after fertilization). Its possible, and very probably imo, that some women miscarriage due to no fault of their own. In states where abortion will now be illegal, will mothers who miscarriage be subject top scrutiny under anti-abortion legislation? Though that is approaching having to prove intent which I dont care to get into.
Do zygotes reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most zygotes will reproduce.
The bodily autonomy argument revolves around the idea that a Zygote CANNOT do these things without the mother carrying the zygote to term (or viability), which you conveniently dont mention. I think its incorrect to say that “Today’s zygotes will give birth to tomorrow’s human beings.” because the “human life” that is a zygote is incredibly simple and cannot do any of the things we (and you) attribute to a human life.
A11
Around 10-20% of pregnancies in the US end in a miscarriage. I don’t think it would be easy to prove that this is solely due to mistakes made by the mother during or before pregnancy
Oh, it would be flatly impossible to prove this, because it would be false. The overwhelming majority of miscarriages, according to my understanding, have absolutely nothing to do with the mother’s behavior. Many of them have nothing to do with her body, either; lots of young fetuses simply can’t hack it in the difficult environment of real life, and they die. The percentage is, as you say, pretty high. In fact, it’s higher than you think. About 10-20% of known pregnancies end in miscarriage. Many pregnancies are unknown. The total miscarriage rate is very probably over 50%.
Therefore, the majority of zygotes do not develop into an adult member of species homo sapiens. Most zygotes do not reproduce.
However, until about a century ago, more than half of born children died in infancy (before the age of 2). Infant mortality at the time was similar to zygote mortality is today. A one-year-old cannot reproduce any more than a zygote, they are incredibly simple and cannot do any of the things we typically “attribute to a full human life” (have you seen a baby recently? they hit themselves in the face sometimes because they literally cannot figure out that they have hands!), and most of them died anyway.
So I think that your second paragraph proves too much. Your criteria for human life appear to exclude infants from the category of living humans (at least, infants living before the 20th century). I trust we agree that this would be a fairly absurd result.
In states where abortion will now be illegal, will mothers who miscarriage be subject top scrutiny under anti-abortion legislation? Though that is approaching having to prove intent which I dont care to get into.
I think the enforcement of infanticide laws prior to the development of antibiotics is instructive here. Most kids died. My understanding, however, is that very few murder investigations were opened. The law is imperfect, but it’s not completely stupid about telling the difference between the routine death of a child and a possible murder.
Of course, the law is shaped by legislators, who are in turn shaped by voters. The future (if Roe falls) is up to the voters in each state. At least for the time being, anti-abortion laws pushed by (for example) the AUL are pretty consistent about completely excluding mothers from civil or criminal liability in abortion-adjacent cases. When mothers are investigated or prosecuted for miscarriage in 2022 America, it is typically done using either pre-Roe statutes or creative application of other statutes that were not originally envisioned to apply to pregnancies.
Thank you for your time and effort.
Thanks for a stimulating conversation!
Q12 [Bonus!]: Is the Draft Majority an originalist decision?
[No one asked me this question, but I wish someone had.]
A12
I have often written at De Civitate about originalism/textualism, and especially about how Roe/Casey is incompatible with it and how the most important purpose of putting originalists on the Supreme Court was to overturn Roe/Casey. The whole pro-life legal movement is basically structured around those premises. So you’d expect this decision to be the culmination of fifty years of originalist work, a masterpiece of originalist thinking.
Instead, it’s not an originalist decision at all!
At no time does Alito examine the Original Public Meaning of the relevant constitutional texts. (Nor did either party to the case.) His opinion is written entirely within the cozy confines of 20th-century substantive due process precedent. Justice Alito does his homework, he proves his case, he applies the precedents consistently to abortion law for the first time in decades, but he doesn’t “do” originalism here.
A truly originalist opinion would look very skeptically on “substantive due process” rights in general. (See Justice Thomas’s dissent in Obergefell: “Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim.”) This could bring down the entire line of cases, from Pierce v. Society of Sisters on parental rights in education to Obergefell’s guarantee of same-sex marriage.
Instead of going the originalist route, all Alito does is show that, according to existing Court precedents, “substantive due process” rights must be “deeply rooted in our nation’s history and traditions,” and the so-called right to abortion is not and never was deeply rooted in anything but Justice Blackmun’s will-to-power. For this argument, Alito mostly relies on precedents from the anti-originalist 1930s through the 1970s—including some of the conservative bogeymen like Griswold—in order to show that Roe was egregiously wrong even by its own standards.
This is why I’ve been calling the Draft Majority a surprisingly narrow decision. It puts a bullet between the eyes of Roe v. Wade, but lobs no grenades into the Court’s 14th Amendment jurisprudence generally (and in fact strains not to). This doesn’t prevent future originalist critiques of the Court’s 14th Amendment jurisprudence (if it did, Thomas and probably Gorsuch wouldn’t join this opinion), but makes no moves to advance those critiques, either.
It is a sign of just how badly reasoned Roe v. Wade and its sequelae were that Alito is able to so thoroughly dismantle them on their legal “home field,” without borrowing anything from originalist critiques. It is likewise a sign of just how bad a judge John Roberts is that he has not already joined this painfully narrow and plainly correct opinion.
Closing Thought
This is just something I found interesting. This discussion was entirely on Reddit. My top reply was heavily upvoted and received a couple “Reddit Gold” awards, which was gratifying. Most of my legal answers were also well-received.
But my answers on the scientific questions of embryology—where the answers are much easier than in the legal realm, the science is absolutely “settled,” uncontested citations supporting my position far more readily available, and the fact of the matter obvious to anyone with eyeballs (no legal degree required)—were all rated “controversial,” receiving upvotes and downvotes in almost equal proportion.
I think this suggests something interesting: even here in 2022, after a full generation of ultrasounds making the humanity of the fetus obvious, a full generation of Violinist Arguments trying to distract us from the humanity of the fetus… the other side still intuitively senses that the humanity of the fetus is the crux of the abortion debate, and still maintains the strongest mental fortifications against that claim. Even as I conceded that the humanity of the fetus and the personhood of the fetus were separate questions, still they resisted the evidence most strenuously.
I’m not sure what can be done about that. I proved my embryology case far more conclusively than any of my interlocutors (which was easy, because the embryological evidence is well-known and uncontested), but I still ended up rated “controversial”. Most of the people doing downvotes didn’t bother to reply. (What could they possibly say?) They just hit the downvote button and went back to thinking they aren’t accessories to murder.
Here’s my preliminary takeaway from this. One key reason pro-lifers are, slowly but steadily, winning right now is because we are correct about the humanity of the fetus, our arguments on that are unanswerable, and many on the other side recognize (deep down) that all the rest of it—“personhood” and autonomy and Equal Protection and so forth—is all just a sideshow. At some level, most of them know, as we do, that (brain waves and “personhood” aside), those are our children, and nothing, not even autonomy, could justify the slaughter of 60 million innocent children and counting.
It took place on /r/neutralpolitics, which uses rigorous moderation to ensure high-quality discussion.
“Substantive due process” is the legal theory that the 14th Amendment’s guarantee of “due process of law” guarantees not just procedural protections like a right to a fair trial, but a wide range of human rights, even though those rights aren’t listed in the Fourteenth Amendment, and the Fourteenth Amendment’s authors didn’t understand any of those rights to be included in their amendment.
I still don’t have a source for this, but, eight years ago, I noted that only 18 states still opposed same-sex marriage. If same-sex marriage supporters can get it down to 12, they can pass a constitutional amendment protecting it.
IANAL: “I am not a lawyer”.
On further reflection, this may have been in United States v. Snyder, not Obergefell, but same difference. I really should dig up the passage I’m thinking of.
At least, it is uncontroversial according to the ordinary English definition of “abortion.” According to various specialized medical definitions of abortion, which vary widely, the removal of an already-dead fetus from a uterus may constitute abortion.
Also, in some definitions, normal live childbirth is an abortion, since birth does “terminate of a pregnancy.” In these cases, obviously, abortion does not extinguish a human life. However, I trust we can all agree that the “right to abortion” at stake in Roe, Casey, and Dobbs is not about the right to remove a dead fetus or the right to give birth. Rather, this line of cases is about the putative constitutional right to remove a live fetus and, in the process, turn it into a dead one.
In all my comments, I am referring to abortion in that sense.
(Most of these footnotes are new today as I create the blog post, but this footnote was in the original discussion!)
Long-time readers of De Civitate will recognize this passage, which is copied almost word-for-word from my 2015 article, “Bill Nye’s Big Lie and Science’s Bigger Problem.”