Does the U.S. Constitution guarantee the right to an abortion? Mark, Wes, Dylan, and Seth are joined by lawyer/sister Robin Linsenmayer to discuss Dobbs v. Jackson Women’s Health Organization (2021) and Ronald Dworkin's "Unenumerated Rights: Whether and How Roe Should be Overruled" (1992).
We previously considered Dworkin's take on what judges do when law is ambiguous. According to his take on abortion, which describes reasonably well the principles that underlie the dissent by Breyer, Sotomayor, and Kagan in this case, the wording in the 14th Amendment and elsewhere in the Constitution is purposefully abstract and idealistic: "Equal protection under law and "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." What is included in that big word "liberty" (and thus "protection") here can't just be what was at the moment of this amendment's ratification in 1868, but is something that society makes discoveries about as time goes on. Crucially, we've discovered it does involve a right to make person decisions about one's family, and so implies marriage equality, the right to use birth control, and the right to abortion. Without this last, according to the dissent, women are effectively denied full participation in our democracy, so abortion laws violate equal protection as well as due process.
Conservative jurisprudence does not buy any of this, and Clarence Thomas' concurring opinion denies any such reading of the 14th Amendment. The majority opinion by Samuel Alito limits itself to pointing out that abortion is different than the other rights in question (marriage equality and birth control) in that it involves another life, and so claims of liberty in the form of bodily autonomy or privacy do not apply to this. Instead, the decision countermands the highly contentious issue of how heavily to weigh the relative interests of the mother and the fetus to legislatures to decide. Alito concludes that justices in Roe v. Wade were wrong to impose their own legislative-sounding solution on this problem.
We try to figure out what all Dworkin's criteria should restrict (can states outlaw bigamy?), how freedom of religion plays into beliefs about life as it relates to abortion, what to do with frozen embryos, and more.
Read the Dworkin article online. Read the Dobbs decision online. For another take on Dobbs that explicitly runs counter to Dworkin's listen to Brian Leiter's appearance on the Brain in a Vat podcast.
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