What the Left Gets Right About Dobbs
Adrian Vermeule
June 28, 2022
At one point in its recent decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court observed that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain a same-sex marriage. No state constitutional provision had recognized such a right. Until a few years before Obergefell, no federal or state court had recognized such a right.”
Oops, my mistake—apologies for mistranscribing the quote. It should read “an abortion” and “Roe” in place of “a same-sex marriage” and “Obergefell.” The result of my error is a passage that could well have been taken straight out of Justice Samuel Alito’s dissenting opinion in the same-sex marriage case, Obergefell v. Hodges, decided in 2015. Both Alito’s majority opinion for the court in Dobbs, and his dissent in Obergefell, rely squarely upon the tradition-based test of an earlier decision, Washington v. Glucksberg, which rejected a claim of a constitutional right to assisted suicide and held that “substantive due process”—the oxymoronic legal rubric under which the high court has recognized libertarian individual rights in the sphere of marriage, family, and sexuality—protects liberty only when “deeply rooted in [the] nation’s history and tradition.”
As soon as the draft opinion in Dobbs leaked, left-liberal commentators rushed to offer a parade of horribles: The traditionalist logic of the Glucksberg test would imperil a whole set of rights previously recognized under substantive due process, such as the rights to enter into a same-sex marriage, to engage in same-sex relations, even to use contraception. When the full set of opinions were released, the dissenters in Dobbs—Justices Stephen Breyer, Elena Kagan, and Sonya Sotomayor, who wrote jointly—adopted exactly this line. On the opposite side, the court’s rightmost justice, Clarence Thomas, wrote in a concurrence that “in future cases, we should reconsider all of this court’s substantive-due-process precedents.”
We may thus distinguish the logical claim that the traditionalist rationale of Dobbs makes questions like same-sex marriage legally indistinguishable from abortion, on the one hand, from the normative claim about which way that inconsistency should be resolved. One might hold that the dissenters in Dobbs are correct as to the logical claim that under a test of tradition, abortion and same-sex marriage are indistinguishable, yet also hold, in contrast to the dissenters, that cases like Obergefell were wrongly decided, and perhaps should even be overruled. In a configuration worthy of this publication, the left and right would then join forces as a logical matter, albeit with opposite normative views, against those who argue that the logic of Dobbs is limited to abortion and doesn’t spill over to other settings.
So far as the tradition rationale goes, it is hard to deny that the left-liberal justices are right about the logical claim, at least so long as the relevant traditions are described at the same low and specific level of generality the majority uses in Dobbs. Same-sex marriage, for example, has no foundation in traditional marriage law or practice and, indeed, in Western conceptions of law generally. Under the Glucksberg test, Obergefell would, if decided today, be an easy case for the court’s current majority; the claim of a right to same-sex marriage would easily be rejected. Of course, Obergefell is already on the books, and the Dobbs majority does gesture briefly and rather half-heartedly at the force of stare decisis, the judicial practice of adhering to precedent. But this rings distinctly hollow, given that the Dobbs court itself overruled two previous cases, and a number of the justifications the court gives for overruling those cases—especially the question whether the earlier decisions rested on “exceptionally weak grounds”—would also apply to Obergefell, given the court’s own traditionalist logic.
Faced with the dissent, and because the court’s moderate-right justices likely insisted on cabining the opinion’s reach, the Dobbs majority opinion repeatedly tries to reject the logical claim, thereby limiting its holding to abortion while declining to threaten same-sex marriage and other previously declared rights. The majority’s main argument is that abortion is unique, because it inflicts third-party harm on prenatal life. Yet this is to introduce a new and entirely different dimension of analysis—indeed, a different conceptual approach, one that isn’t based in the test of tradition. After all, traditional legal rules barred any number of consensual practices not inflicting third-party harms in any direct sense, such as contraception.
The Dobbs majority opinion thus rests on a profoundly uneasy combination of two entirely different approaches: a traditionalist-conservative logic that one might associate with Edmund Burke, and a liberal logic built around consent and the harm principle, stemming from John Stuart Mill. But these two logics are oil and water, fire and ice. The Millian logic was developed for the very purpose of destabilizing traditional moral, social, and legal norms that, in Mill’s view, unjustifiably interfered with the autonomous development of the individual personality, and with the free agreements of individuals. The point of Mill’s harm principle is to propose not so much a sufficient justification for state regulation (as in the Dobbs opinion), but rather a necessary precondition that limits state interference in the name of traditional morality. This is why the Millian majority opinion in Obergefell declared that “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.” And it is why, when the court considered the state interests in “excluding” same-sex couples from the institution of marriage, it did so largely by defining those interests in material, harm-based terms, thereby erasing traditional conceptions of marriage and limiting the state to a series of secondary public-policy predictions about the deleterious effects of same-sex marriage—arguments that the Obergefell majority easily dismissed as conjectural or overly broad.
Conceptually, then, the coherence of the Dobbs majority is dubious. Its twin logics may have, by happenstance, pointed in the same direction with respect to abortion, which fails both the test of tradition and the test of harm. But they are enemies in other settings involving practices that are both consensual and counter-traditional, in which the Millian logic supports libertarian rights. It is thus a separate, further question whether the uneasy combination of those two logics in Dobbs will prove stable over time. Although the constitutional right of same-sex marriage, for example, may currently seem a stable equilibrium, this may be merely a function of the limits of legal and political imagination, which chronically favor the status quo and underestimate the possibilities of change. At any number of points between the decisions in Roe in 1973 and Dobbs in 2022, the legal regime for abortion also seemed more or less settled. Indeed, the backlash against Roe didn’t gather much steam until the mid-1990s, when Protestant evangelicals within the Republican Party saw an opportunity to peel off pro-life Catholic Democrats from the New Deal coalition. As far as Obergefell goes, it is early days yet.
Much will depend upon the contingencies of future constitutional politics, which are inherently unpredictable; consider how different our legal world would look if Donald Trump had not narrowly won the election of 2016 and appointed three justices. And even if past issues are genuinely off the table due to the force of precedent, which of course failed to save the abortion precedents, due in important part to ongoing political contestation, the two logics of tradition and harm come apart not merely in the settings the court has also decided, but also in future ones—issues periodically surfacing in the lower courts that the justices may well face at some point, such as polygamous marriage or incestuous marriage between consenting adults. The dissenters in Dobbs, although wrong about many things, have one crucial and convincing point: Under the traditionalist logic of the majority opinion, the status of both the court’s past and future substantive-due-process decisions is unpredictable and potentially up for grabs.
Adrian Vermeule, a contributing editor of Compact, is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School and the author, most recently, of Common Good Constitutionalism.
https://compactmag.com/article/what-the-left-gets-right-about-dobbs
June 28, 2022
At one point in its recent decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court observed that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain a same-sex marriage. No state constitutional provision had recognized such a right. Until a few years before Obergefell, no federal or state court had recognized such a right.”
Oops, my mistake—apologies for mistranscribing the quote. It should read “an abortion” and “Roe” in place of “a same-sex marriage” and “Obergefell.” The result of my error is a passage that could well have been taken straight out of Justice Samuel Alito’s dissenting opinion in the same-sex marriage case, Obergefell v. Hodges, decided in 2015. Both Alito’s majority opinion for the court in Dobbs, and his dissent in Obergefell, rely squarely upon the tradition-based test of an earlier decision, Washington v. Glucksberg, which rejected a claim of a constitutional right to assisted suicide and held that “substantive due process”—the oxymoronic legal rubric under which the high court has recognized libertarian individual rights in the sphere of marriage, family, and sexuality—protects liberty only when “deeply rooted in [the] nation’s history and tradition.”
As soon as the draft opinion in Dobbs leaked, left-liberal commentators rushed to offer a parade of horribles: The traditionalist logic of the Glucksberg test would imperil a whole set of rights previously recognized under substantive due process, such as the rights to enter into a same-sex marriage, to engage in same-sex relations, even to use contraception. When the full set of opinions were released, the dissenters in Dobbs—Justices Stephen Breyer, Elena Kagan, and Sonya Sotomayor, who wrote jointly—adopted exactly this line. On the opposite side, the court’s rightmost justice, Clarence Thomas, wrote in a concurrence that “in future cases, we should reconsider all of this court’s substantive-due-process precedents.”
We may thus distinguish the logical claim that the traditionalist rationale of Dobbs makes questions like same-sex marriage legally indistinguishable from abortion, on the one hand, from the normative claim about which way that inconsistency should be resolved. One might hold that the dissenters in Dobbs are correct as to the logical claim that under a test of tradition, abortion and same-sex marriage are indistinguishable, yet also hold, in contrast to the dissenters, that cases like Obergefell were wrongly decided, and perhaps should even be overruled. In a configuration worthy of this publication, the left and right would then join forces as a logical matter, albeit with opposite normative views, against those who argue that the logic of Dobbs is limited to abortion and doesn’t spill over to other settings.
So far as the tradition rationale goes, it is hard to deny that the left-liberal justices are right about the logical claim, at least so long as the relevant traditions are described at the same low and specific level of generality the majority uses in Dobbs. Same-sex marriage, for example, has no foundation in traditional marriage law or practice and, indeed, in Western conceptions of law generally. Under the Glucksberg test, Obergefell would, if decided today, be an easy case for the court’s current majority; the claim of a right to same-sex marriage would easily be rejected. Of course, Obergefell is already on the books, and the Dobbs majority does gesture briefly and rather half-heartedly at the force of stare decisis, the judicial practice of adhering to precedent. But this rings distinctly hollow, given that the Dobbs court itself overruled two previous cases, and a number of the justifications the court gives for overruling those cases—especially the question whether the earlier decisions rested on “exceptionally weak grounds”—would also apply to Obergefell, given the court’s own traditionalist logic.
Faced with the dissent, and because the court’s moderate-right justices likely insisted on cabining the opinion’s reach, the Dobbs majority opinion repeatedly tries to reject the logical claim, thereby limiting its holding to abortion while declining to threaten same-sex marriage and other previously declared rights. The majority’s main argument is that abortion is unique, because it inflicts third-party harm on prenatal life. Yet this is to introduce a new and entirely different dimension of analysis—indeed, a different conceptual approach, one that isn’t based in the test of tradition. After all, traditional legal rules barred any number of consensual practices not inflicting third-party harms in any direct sense, such as contraception.
The Dobbs majority opinion thus rests on a profoundly uneasy combination of two entirely different approaches: a traditionalist-conservative logic that one might associate with Edmund Burke, and a liberal logic built around consent and the harm principle, stemming from John Stuart Mill. But these two logics are oil and water, fire and ice. The Millian logic was developed for the very purpose of destabilizing traditional moral, social, and legal norms that, in Mill’s view, unjustifiably interfered with the autonomous development of the individual personality, and with the free agreements of individuals. The point of Mill’s harm principle is to propose not so much a sufficient justification for state regulation (as in the Dobbs opinion), but rather a necessary precondition that limits state interference in the name of traditional morality. This is why the Millian majority opinion in Obergefell declared that “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.” And it is why, when the court considered the state interests in “excluding” same-sex couples from the institution of marriage, it did so largely by defining those interests in material, harm-based terms, thereby erasing traditional conceptions of marriage and limiting the state to a series of secondary public-policy predictions about the deleterious effects of same-sex marriage—arguments that the Obergefell majority easily dismissed as conjectural or overly broad.
Conceptually, then, the coherence of the Dobbs majority is dubious. Its twin logics may have, by happenstance, pointed in the same direction with respect to abortion, which fails both the test of tradition and the test of harm. But they are enemies in other settings involving practices that are both consensual and counter-traditional, in which the Millian logic supports libertarian rights. It is thus a separate, further question whether the uneasy combination of those two logics in Dobbs will prove stable over time. Although the constitutional right of same-sex marriage, for example, may currently seem a stable equilibrium, this may be merely a function of the limits of legal and political imagination, which chronically favor the status quo and underestimate the possibilities of change. At any number of points between the decisions in Roe in 1973 and Dobbs in 2022, the legal regime for abortion also seemed more or less settled. Indeed, the backlash against Roe didn’t gather much steam until the mid-1990s, when Protestant evangelicals within the Republican Party saw an opportunity to peel off pro-life Catholic Democrats from the New Deal coalition. As far as Obergefell goes, it is early days yet.
Much will depend upon the contingencies of future constitutional politics, which are inherently unpredictable; consider how different our legal world would look if Donald Trump had not narrowly won the election of 2016 and appointed three justices. And even if past issues are genuinely off the table due to the force of precedent, which of course failed to save the abortion precedents, due in important part to ongoing political contestation, the two logics of tradition and harm come apart not merely in the settings the court has also decided, but also in future ones—issues periodically surfacing in the lower courts that the justices may well face at some point, such as polygamous marriage or incestuous marriage between consenting adults. The dissenters in Dobbs, although wrong about many things, have one crucial and convincing point: Under the traditionalist logic of the majority opinion, the status of both the court’s past and future substantive-due-process decisions is unpredictable and potentially up for grabs.
Adrian Vermeule, a contributing editor of Compact, is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School and the author, most recently, of Common Good Constitutionalism.
https://compactmag.com/article/what-the-left-gets-right-about-dobbs
