A battle of philosophies

Today is election day. One of the noteworthy aspects of this election is that Democrats are pinning many of their hopes on the idea that the Supreme Court’s Dobbs decision reversing Roe v. Wade will prove to be a winning issue for them. They poured millions of dollars into advertising on the issue and tried to drive registration among progressive young women, angry over the loss of their “rights.”

Of course, relatively few voters are motivated by an appeal as blunt as that, reduced to something like: “Vote today so you can abort a baby tomorrow.” Instead, progressives are counting on voters turning out to pull their levers not for a particular bundle of “rights,” but for a vision of history.

Indeed, many of the battles between progressives and conservatives today revolve around the meaning and direction of history, a clash that was on vivid display in the Dobbs decision itself. Every great legal debate represents a battle over history, an attempt to define how much the past continues to bind us and how much we can stretch the fabric of history to meet new needs and answer new questions. The judges who wrote the Dobbs decision were driven by divergent philosophies of history, and the future of the abortion debate going forward will depend in large part on which philosophy wins out.

The Dobbs dissenters—liberal Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—presented the role of history in terms of a dead past competing with a dynamic future. Either we must “read the Fourteenth Amendment just as its ratifiers did” or we must retain the freedom to infuse it with our own fresh meanings. Repeatedly caricaturing the majority’s opinion as one of strict originalism, they sought to conjure up the specter of a 21st century America bound to late-19th century norms, in which women were “consigned to second-class citizenship. In place of such narrow traditionalism, they argued for a dynamic vision of ever-expanding rights.

To judge whether or not a right should be added to the Fourteenth Amendment, the judges suggest, we must merely consult contemporary opinion. As they wrote in their shared dissent, “the expectation of reproductive control is integral to many women’s identity and their place in the Nation.” Accordingly, they argued, abortion must be construed as a constitutional right. By this standard, of course, the list of rights is liable to keep expanding indefinitely—a prospect the liberal judges seem to embrace with relish.

By contrast, Justice Alito’s majority opinion presented a fundamentally different philosophy of history. First, he rejected the dissent’s all-or-nothing approach. The Dobbs majority granted that it is possible for new liberty rights to emerge over time as society changes, even if they are not enumerated in the Constitution. However, quoting from a 1997 case on assisted suicide, Washington v. Glucksberg, Alito observed that “we must exercise utmost care” before doing so; the Court cannot simply impose its own opinions about what liberty should mean. New rights can only enter into constitutional law, says Alito, when they are “objectively, deeply rooted in this Nation’s history and tradition.”

Thus, although acknowledging that history means change, Alito stressed that history can also function as a conservative force. One cannot simply wave one’s hand and say, “times are different now”; constitutional law is a weighty thing, and it takes a strong current of history flowing steadily in the same direction to make it budge. Alito thus insists that new rights can only expand the bounds of constitutional liberty, but after they have developed a long cultural and legal track record.

Fortifying his opinion with a 30-page appendix that surveys state laws against abortion from 1825 to 1952, Justice Alito concluded crisply, “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”

In our fast-paced age of ever-shortening attention spans, the half-century since Roe is liable to feel like an aeon, and the dissenting judges indeed seem shocked that 49 years is not enough to “deeply root” a right in history—however disputed it has been along the way. The Democrats are counting on voters—especially younger voters—to go along with this myopia.

The Supreme Court did not take away a right by reversing Roe v. Wade. Instead, the Court’s majority made clear that a constitutional right to abortion had never existed at all.