The Constitutional Principle and Judicial Operationalization of Abortion Access
As the Dobbs decision was announced in 2022, the Supreme Court’s blatant reversal of precedent shocked many Americans. How could a decision, widely regarded as “settled law” and “precedent” by the conservative Justices on the court, be so easily overturned? When evaluating the legitimacy of the Supreme Court’s pre-2022 rulings on abortion, two distinct areas must be addressed in tandem – the constitutional logic of the Court’s principles, and the actions taken to operationalize said principles. The Court recognized the penumbral right to privacy as the basis for the constitutional protection of abortion access, thus relying on a Lockean conception of individual rights to ground their constitutional logic. In order to preserve this right, the Court established the trimester scheme in Roe v. Wade (1973) and the undue burden test in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Although the Justices had the authority to interpret and develop the constitutional right to privacy considering the flexible nature of the Constitution – as supported by the Publican conception and Madisonian interpretation of the document – the judiciary overstepped its constitutionally accepted parameters of elucidation by developing pseudo-legislative protocols to protect abortion access, thus paving the way for the* Dobbs* reversal.
In Democracy in America, Alexis de Toqueville presents the fundamentally limited scope of the judiciary, clarifying the branch’s constitutional duty as primarily applicative, rather than legislative or creative. He defines the judiciary’s role as “an arbiter” as the first and most important responsibility of the branch, such that Judges and Justices are constrained in their opinions to rule on “cases” where a law “give[s] rise to dispute [1].” In Toqueville’s perception of the judiciary, the branch is expected to adjudicate and opine on specific cases originating from legal disputes, with no ability to craft legislation in any form or fashion. This understanding is further corroborated by his second identified characteristic of judicial power, which restricts the branch to “pronounce on particular cases and not general principles” [2]. Whereas Judges and Justices are justified in striking down a general principle which is immediately relevant to a case, they are unable to “attack the principle directly and destroy it without having a particular case in mind” [3]. This serves to diminish the political saliency and power of the judiciary, a branch which Toqueville understands to be strictly extra-political in operation. He emphasizes that the nature of the judiciary is fundamentally static and motivated to action “only when it is appealed to” [4].
Thus, Toqueville’s strict parameters for the Judicial branch can be understood to condemn the constitutional legitimacy of both Roe and Casey, both of which seek to preserve a woman’s ability to obtain an abortion through creating pseudo-legislative frameworks of protection. The Court is not empowered to create such a structure to protect rights; rather, it only can act to clarify the meaning of a law and ensure it is constitutional. However, in both *Roe *and Casey, Justices develop their own framework of guidelines to protect abortion access. In the Dobbs decision, Alito rejects Roe’s trimester scheme as a “detailed set of rules…much like those that one might expect to find in a statute or regulation” [5]. Simply put, “the scheme Roe produced looked like legislation" [6]. While the trimester system was later replaced by the undue burden test in Casey, Alito asserts that this regulation is equally legislative in nature, and thus illegitimate [7]. The mechanisms the Court created formalized a process to protect abortion access, and thus were actions beyond a simple ruling on existing laws. When considering the strict limits of the judiciary as outlined by Toqueville, who explicitly restricts the branch from creating any form of policy, the pseudo-legislative mechanisms by which the Supreme Court sought to protect women’s access to abortion are illegitimate.
Toqueville’s reflections on the judiciary are preceded by Marbury v. Madison (1803), wherein Chief Justice John Marshall expounded on this limited conception of judicial power. Similar to Toqueville, Marshall asserts that the fundamental “province and duty of the judicial department is to say what the law is” [8]. He creates the constitutional lifecycle of a law, defined by the stages of establishment, enactment, and if necessary, elucidation. These three spheres are specifically split to reside within the three distinct branches of government, such that the legislature is responsible for establishing laws and the executive enacts the law. Finally, the judiciary is empowered to elucidate the laws using the Constitution both as the lens of understanding and the standard to which the law is held. Thus, the powers of the branches are thus clearly “defined and limited” [9]. However, while delineating the specific roles of the branches, he simultaneously founds and originates the extra-constitutional concept of judicial review, as a “theory…essentially attached to a written constitution, and, is consequently, to be considered, by the court, as one of the fundamental principles of our society” [10]. He thus creates the fundamental, core power of the Supreme Court – which is mentioned nowhere in the Constitution itself – through treating the Constitution as a flexible document which enables interpretation. His opinion thus reaffirms the strictly defined Tocquevillian conception of the Judicial branch, while simultaneously introducing the possibility for deviations from these strict parameters.
Marshall’s introduction of the possibility for constitutional ductility is only corroborated by flexible language used in the Federalist Papers, which points toward a judiciary empowered and expected to interpret the Constitution. Federalist 78 makes clear that the Framers are in agreement with Marshall and Toqueville’s understanding that the judiciary “can take no active resolution whatever” to settle a legal dispute via legislative means [11]. However, while the branch’s power is limited to “merely judgment,” Publius makes clear that this process of adjudication involves much more than simply reading and inertly applying the text [12]. Publius presents the very essence of judicial duty as grounded in the responsibility to study the Constitution to “ascertain its meaning”, a complicated process which involves far more than simple, literal reading [13]. The choice to include “ascertain” implies a multi-faceted process of constitutional scholarship involving reading, interpretation, and application, rather than the simple reading application binary of strict textualism. Thus, the Court is legitimized in developing a penumbral right to privacy which protects abortion access through an flexible reading of the 1st, 3rd, 4th, 5th, and 9th Amendments [14]. While the judiciary is restricted in regards to the manner in which they can resolve legal disputes, the branch nevertheless is empowered with the ability to interpret, decipher, and clarify the constitutional enumeration of individual rights.
Even disregarding the understanding of the Constitution as a flexible document, Publius’ foundational conception of individual rights as expansive and inclusive in nature legitimizes the Supreme Court’s use of the penumbral quality of written amendments to establish a right to privacy. In Federalist 84, Publius asserts that the addition of a Bill of Rights to the existing Constitution is not only “unnecessary,” but “dangerous,” as it would undermine the nation’s founding ideal that all individuals are endowed with personal rights [15]. Considering that the U.S. Constitution is founded upon and legitimized by “the power of the people,” Publius argues that when it comes to individual rights, “the people surrender nothing; and as they retain everything they have no need of particular reservations” [16]. Thus, this Lockean understanding of individual rights as inherent and inalienable makes the Bill of Rights redundant, even irrelevant, as the very existence of the Constitution consecrates the broad rights of American citizens. Furthermore, when applying Publius’ logic to the modern abortion debate, it becomes clear that every citizen is endowed with the fundamental right to privacy that must be respected by the government, whether or not those exact words are spelled out within the Constitution. The right to privacy, which implies the right to bodily autonomy and thus the ability to get an abortion, is not a privilege that must be handed down to the populace by the government, the ultimate arbiter of individual rights. Rather, it is an inherent right derived from personhood, acknowledged by the Constitution which itself draws its power from inherent rights of the governed — rights which do not necessitate specific enumeration to be legitimized.
This logic is further supported by Madison, in his 1791 Speech on the Bank Bill, wherein he confirms that specific writing or enumeration is not incidental to the existence of a right. Madison, the “Father of the Constitution,” contended that while the Constitution is a carefully and thoughtfully crafted document, its meaning is by no means limited to the simple words on the parchment. He explains – “if we ventured to construe the Constitution, such construction only was admissible, as it carefully preserved entire the idea on which that Constitution is founded” [17]. The Constitution is thus designed to be interpreted and analyzed through the Lockean lens of natural rights, wherein individual rights are preserved beyond the simple enumerated privileges in a bill of rights. In fact, Madison continues to explicitly clarify that “it is not pretended that every insertion or omission in the constitution is the effect of systematic attention,” a reality which thus legitimizes “a rule of interpretation” [18]. Thus, the Supreme Court’s development of a right to privacy to enable abortion access was by no means an example of Justices unconstitutionally developing policy or legislation. Rather, it is a simple exercise of their constitutionally mandated responsibility to interpret and ascertain the true meaning of the Constitution through a valid use of judicial power.
While my thesis contends that the Court is constitutionally authorized to universally protect abortion access through the establishment of a right to privacy, there are many individuals who argue that the Court’s entire involvement in the abortion debate constitutes judicial overreach, as the issue has already been addressed by state legislatures. After all, why should the Court establish its own, universalized resolution to the matter when individual states have resolved the problem via clear policies in their separate state legislatures? Is this not a more direct, more democratic expression of the will of the people via their direct representatives? While in a perfect world this may well be the case, we would be remiss in accepting this simple argument without acknowledging the debate as a fundamental question of universal rights, an issue which cannot be resolved on an individualized, state basis. Despite complicated jurisprudence and conflicting opinions, it is evident that the abortion debate centers around a question of universal, constitutional rights – whether or not the right to privacy exists, and if it does, whether that privacy includes the right to bodily autonomy and abortions. In issuing a writ of certiorari for Casey, Roe, and Dobbs, the Supreme Court has itself acknowledged that this question is fundamentally a question of Constitutional rights – for as Toqueville stated, “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws” [19] After this important bridge was been crossed, individual state legislatures no longer have the ability to resolve this complicated issue, as doing so on an individual basis would create a hierarchical case system of rights, wherein the breadth an individual’s enfranchisement to a right to privacy is suddenly dependent on geography, not constitutional law.
As the Supreme Court proceeds in ignoring stare decisis, struggling to grapple with the complicated issue of abortion and privacy, it is important to emphasize the nuance of the constitutional logic and legitimacy of their actions. The mechanism by which the Court protected abortion access devolved into the sphere of the legislative branch, thus providing an example of an unconstitutional use of judicial power. However, the principle behind the Court’s pre-2022 abortion rulings, which establishes a woman’s right to an abortion via the penumbral right to privacy, is an appropriate and accurate utilization of the intended flexibility of the Constitution. Ultimately, while the Court’s operationalization of protecting abortion access constitutes unconstitutional judicial overreach, the action was taken to protect an individual right which can be legitimately located within the spirit of the Constitution – a document intended by its writers to be flexible and ductile.
Bibliography
[1] Tocqueville, Alexis de. Democracy in America, 93.
[2] Ibid., 94.
[3] Ibid., 94.
[4] Ibid., 95.
[5] United States Supreme Court. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET A, 2.
[6] Ibid.
[7] Ibid., 4.
[8] Marshall, John, and Supreme Court Of The United States. U.S. Reports: Marbury v. Madison, 65.
[9] Ibid., 64.
[10] Ibid., 65.
[11] Hamilton, Alexander et. al. The Federalist, 401.
[12] Ibid., 402.
[13] Ibid., 402.
[14] United States Supreme Court. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET A, 9.
[15] Hamilton, Alexander et. al. The Federalist, 444.
[16] Ibid., 445.
[17] Madison, James. “1791: Madison, Speech on the Bank Bill.”
[18] Ibid.
[19] Tocqueville, Alexis de. Democracy in America, 93.