Worsham captures opposing interpretative philosophies through the exploration of the landmark decision Dobbs v. Jackson Women’s Health. The majority opinion is written from the perspective of the renowned Justice Antonin Scalia, attending to his ever-impassioned defense of constitutional originalism. The dissenting opinion is written from the perspective of Judge Hercules, the fictitious ideal, infinitely principled jurist conceptualized by the legal scholar Ronald Dworkin. The essay was written for Professor Christopher Kutz’s and Haley Anderson’s Spring 2024 Art of Writing course, “Philosophy of Law.”
DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
JUSTICE SCALIA delivered the opinion of the Court.
In evaluating Roe, Casey, and the right to abortion, I am put in the position of evaluating the law, not my philosophy. There is no right to abortion contained in the Fourteenth Amendment’s Due Process Clause. The framers of the Fourteenth Amendment never understood the Due Process Clause to protect abortion.
I
When assessing the right to abortion, the meaning assigned to the text at the time holds sway, not the “current meaning.”[1] If judges were permitted to let modern flights of fancy guide constitutional interpretation, the Fourteenth Amendment would mean whatever unaccountable judges think it “ought to mean.”[2] That is not law.
Abortion is nowhere in the Due Process Clause’s protection against deprivation of “life, liberty, or property, without due process of law.”[3] Despite this, the lack of direct textual support is only part of our inquiry. The Constitution deserves a “reasonable construction,” not a narrow or “strict construction.”[4] We must allow for “expansive” interpretation without going beyond what “the language will […] bear.”[5]
For a right to be implicit, but not expressed in the Due Process Clause, it must be “deeply rooted in [our nation’s] history and tradition,”[6] not only tangentially related to an enumerated guarantee. In ascertaining the original meaning of the Due Process Clause we look to the “period surrounding the enactment of the Fourteenth Amendment.”[7] During the 19th century, “the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.”[8] It is clear that no one at that time thought that abortion was protected. Therefore, abortion is not implicit in the original meaning of the Due Process Clause.
II
The dissent claims that I engage in a charade of sorts by claiming to ascertain the meaning of the text while finding only expectations. This is a misunderstanding of our argument. The fact that abortion was widely banned throughout the nation at the time of the Fourteenth Amendment’s ratification elucidates the meaning of liberty at that time. Through historical inquiry, we seek to find what the ratifiers of the Due Process Clause meant when writing words like ‘liberty’ and ‘due process.’ Recognition of original meaning is not fealty to expectation.
Further, Justice Hercules argues that the Constitution “contains principles […] relitigated and redrawn over time.” In this, the dissent comes eerily close to the so-called “living constitution.”[9] To regard the Constitution as something that morphs and evolves is such a nebulous, vapid interpretation that it would cause the Constitution to have done “nothing at all.”[10] For the Fourteenth Amendment’s guarantees to mean anything, they must be imbued with meaning beyond the philosophical musings of Justice Hercules.
There is no historical evidence that the abortion right is “deeply rooted in [our nation’s] history.”[11] Despite the clear lack of any evidence to support a right to abortion, the Court in Roe and Casey ripped the matter away from the people’s elected representatives. This was the cardinal sin of Roe. The Court “short-circuited the democratic process,”[12] imposing “new constraints” and “new inflexibilities”[13] against our republic without legal justification. We now return the proper authority to the people and their representatives.
It is so ordered.
JUSTICE HERCULES, dissenting.
There is an enduring principle of personal bodily autonomy contained in our Constitution that validates the right to abortion. The majority, in their rush to dilute the meaning of the Fourteenth Amendment, rely not on the original meaning, but on the mistaken judgment of what the framers expected the guarantee of liberty to contain. To give the Due Process Clause, a beacon of justice and civility in our time, a lifeless, narrow, and legally dubious interpretation is simply wrong.
I
The majority confines the Due Process Clause’s liberty guarantee only to rights “deeply rooted in [our nation’s] history,”[14] while claiming that this yields the “original meaning.” Justice Scalia fails to recognize that the Court is truly elevating the expectations of the framers, not the “semantic”[15] meaning of the text. In so doing, the majority limits the term liberty only to what those at the time expected it to contain.
The majority relies on the history of abortion bans at the time of the ratification of the Fourteenth Amendment. In Justice Scalia’s thinking, since those at the time didn’t apply the Due Process Clause to abortion bans, we cannot either. This argument was thoroughly rejected in Brown v. Board of Education.[16] It is uncontested that “the majority of the members of Congress who voted for [the Fourteenth Amendment] […] sustained racial segregation.”[17] No one at the time of the ratification expected the Equal Protection Clause to prohibit racial segregation. Despite that fact, this Court found in Brown that there is a “general principle of political morality”[18] contained in the text that extends beyond the framers’ expectations.
Similarly to this Court’s Equal Protection jurisprudence, the Due Process Clause is not needlessly limited by the expectations of those who wrote the Fourteenth Amendment. There is no “plausible interpretation” of the Equal Protection Clause “that entitles us to conclude that [the framers] declared segregation constitutional.”[19] In the same way, there is no reasonable interpretation of the Due Process Clause that leads to the conclusion that the framers declared all abortion bans constitutional. The majority engages in faulty logic, justifying an argument for the original meaning with hidden deference to expectation.
II
The Constitution contains principles “immanent in the law as a whole” that are continually defined, their contours relitigated and redrawn over time.[20] The majority today seems ignorant of the arch of cases that validate the right to abortion through the principle of “self-determination.”[21]
There is a long line of cases that protect an individual’s “bodily integrity”[22] and “bodily autonomy”[23] which coalesce into a principle of “self-determination” woven into “the fabric of our constitutional law.”[24] In Griswold v. Connecticut and Eisenstadt v. Baird, we protected against “unwarranted governmental intrusion into matters so fundamental […] as the decision whether to bear or beget a child.”[25] In Cruzan v. Dept. of Health we found a right “to determine what shall be done with [one’s] own body.”[26] Further, we have repeatedly “restricted the power of government to interfere with a person’s medical decisions” in cases such as Winston v. Lee which restricted “forced surgery,” Rochin v. California with “forced stomach pumping,” and Washington v. Harper with “forced administration of antipsychotic drugs.”[27] The “gravitational force”[28] exerted by these decisions charts the trend of the law toward greater personal freedom over bodily decisions. This principle is now part of the “internal logic of the law.”[29]
III
Roe and Casey are both part of the enduring principle of “self-determination.”[30] Roe grounded its right to abortion on the principles of “personal, marital, familial, and sexual privacy,”[31] perceiving the inherent similarity of abortion to cases “recognizing limits on governmental power to mandate medical treatment.”[32] Casey similarly found its right in the “realm of personal liberty.”[33] It is the role of judges to find principles within the expanse of precedent. Today this Court, in rejecting a woman’s right over a personal medical decision, ignores the most basic principle of our law: “the fairness of treating like cases alike.”[34] The right to abortion is so like the rights in so many other cases that it is utterly unfair to treat such a crucial medical decision differently. I dissent.
[1] Scalia, Antonin. “Common-Law Courts In A Civil Law System.” Essay. In Chapter 5: Legal Interpretation, n.d. 180.
[2] Ibid.
[3] “Fourteenth Amendment | Constitution Annotated | Congress.Gov .” Constitution Annotated. Accessed February 14, 2024. https://constitution.congress.gov/browse/amendment-14/.
[4] Scalia, Antonin. “Common-Law Courts In A Civil Law System.” Essay. In Chapter 5: Legal Interpretation, n.d. 179.
[5] Ibid.
[6] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2022 U.S. LEXIS 3057. 12.
[7] Ibid., Footnote 24. 16.
[8] Ibid., 23.
[9] Scalia, Antonin. “Common-Law Courts In A Civil Law System.” Essay. In Chapter 5: Legal Interpretation, n.d. 180.
[10] Ibid., 184.
[11] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2022 U.S. LEXIS 3057. 12.
[12] Ibid., 5.
[13] Scalia, Antonin. “Common-Law Courts In A Civil Law System.” Essay. In Chapter 5: Legal Interpretation, n.d. 181.
[14] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2022 U.S. LEXIS 3057. 12.
[15] Dworkin, Ronald. “Comment.” Essay. In Chapter 5: Legal Interpretation, n.d. 186.
[16] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[17] Dworkin, Ronald. “Comment.” Essay. In Chapter 5: Legal Interpretation, n.d. 187.
[18] Ibid.
[19] Ibid.
[20] Dworkin, Ronald. “Hard Cases.” Essay. In Taking Rights Seriously, n.d. 112.
[21] Dissent, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2022 U.S. LEXIS 3057. 20.
[22] Ibid., 21.
[23] Ibid., 20.
[24] Ibid.
[25] Ibid., 24.
[26] Ibid., 21.
[27] Ibid.
[28] Dworkin, Ronald. “Hard Cases.” Essay. In Taking Rights Seriously, n.d. 111.
[29] Ibid., 112.
[30] Dissent, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 2022 U.S. LEXIS 3057. 20.
[31] Roe v. Wade, 410 U.S. 113 (1973). 129.
[32] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). 835.
[33] Ibid.,. 848.
[34] Dworkin, Ronald. “Hard Cases.” Essay. In Taking Rights Seriously, n.d. 113.