Continuing from part one on Ronald Dworkin’s “Unenumerated Rights: Whether and How Roe Should be Overruled” (1992) and the Dobbs v. Jackson Women’s Health Organization (2021) decision featuring guest Robin Linsenmayer.
Dworkin thinks that the distinction between enumerated and unenumerated rights really doesn’t make sense. All legal language is vague and requires interpretation. For instance, does “freedom of speech” include freedom of writing? Does it include flag burning? Judges always have to look beyond the literal words of the law to determine how to apply it to new cases. He doesn’t see any fundamental difference between such an argument about flag burning and the consideration of whether Due Process includes the right to privacy and whether this in turn includes abortion. Judges always use interpretation to make judgments, and according to Dworkin they are guided by legal principles given by the Constitution as a whole, its purpose, and the society that it’s trying to achieve.
In judging “the Constitution,” judges are also judging the way that the Constitution has been interpreted in the past, i.e. precedent. The reasoning in Casey v. Planned Parenthood (1992) that previously affirmed the central findings of Roe relied in no small way on stare decisis: Even if Roe was itself underdetermined by the law, the fact that the court made that decision, which was then relied on by other decisions, provided a key rationale for Casey to say that Roe is established law that should not be overturned without some strong reason; an opinion by a future court that Roe was wrongly decided shouldn’t be enough. Alito rejects stare decisis in Dobbs, citing past cases like Brown v. Board of Education that overturned the legality of segregation in Plessy v. Ferguson. The Dobbs dissent points out how that was different: In experiencing Jim Crow, we as a society more clearly learned that segregation is not compatible with equal treatment. Nothing comparable was learned by our society under Roe, the dissent claims, and so precedent should prevail.
Beyond this defense of abortion rights, Dworkin gives an idiosyncratic account of exactly what the state’s interest in potential life is. He claims that because abortion is an important decision involving life and death, the state may legislate our moral climate such that people shouldn’t necessarily be able to make the decision to abort without really thinking hard about it. So he would be OK with waiting periods and such. This interest stems from a different kind of claim than one related to the rights of an actual being. It’s rather an interest in “life in general,” much like a general interest in the environment or in some aspect of intellectual culture. Do you think there are legitimate state interests that don’t stem in some way from personal rights?