Dobbs: Thomas Concurrence

I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any pen of life, liberty, or property without due process of law.”

The importance of reproductive liberty to women's equal place in society, which is a matter of equal protection (with some 19A mixed in), is a significant aspect of the dissent. It also is cited in Planned Parenthood v. Casey. And, there is a section in the respondents' brief entitled "The Right to Decide Whether to Continue a Pregnancy Before Viability Remains Critical to Women’s Equal Participation in Society."

Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

There has been a lot of scholarship regarding this point.  Whatever he thinks some Plato-like forms version of the Constitution supposedly guarantees, it has been generally accepted from at least the mid-19th Century (probably before) that there is some substantive aspect of due process of law.  Trying to overturn over a hundred years of precedent might be his cup of tea, but it's on some basic level ridiculous.  

The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised"

The dissent explains how they are not "unique" in various respects. The Catholic Church, for one, does not think "potential life" suddenly is not an issue when birth control is involved. As Justice Stevens noted in Thornburgh, it is basically questioning begging to separate things at the fertilization line.  And, no other "unique" aspect is present, including such things as it being illegal or something at the relevant time.

That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.

And, going after "substantive due process" won't stop abortion rights as seen by the opinions in Griswold (reference to the 9th Amendment and penumbras of enumerated rights), even aside from the equal protection aspect.  So, for example, Justice Thomas in the past was willing to accept that there was a fundamental right to raise children as one sees fit. The right not to have children has been defended from that overall principle. 

What exactly is wrong with "substantive due process"?  Justice Douglas in his concurrence in Doe v. Bolton denies he was using it.  He argues that the right to privacy is necessary to protect the enumerated "liberties" found in the Bill of Rights.  For him, substantive due process was problematic since it is an open-ended means of judicial policy making.  At the end of the day, how much sunlight is between Harlan and Douglas on this point is unclear.

First, “substantive due process exalts judges at the expense of the People from whom they derive their authority.”

The fact Thomas quotes an opinion by Justice Byron White, who concurred with Griswold and was willing to accept unenumerated rights in various cases, is telling.  Thomas citing this is rather amusing. He appeals to various sources to overrule current majorities.  That's okay though.  

Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others.

Again, this just moves the problem.  If someone supports a "privilege or immunities" approach or the Ninth Amendment, there will be unenumerated rights for which a higher degree of scrutiny, using various criteria (including vagueness concerns), will be involved.  

Third, substantive due process is often wielded to “disastrous ends.”

He cited Dred Scott here as if that opinion rested on substantive due process.  Again, there is nothing unique about SDP here, and it is hard to find a right that will be applied to that route that cannot be another route. So, for instance, people think the gun ruling was disastrous.  He would use the privileges of national citizenship route instead of substantive due process. 

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I think the dissent is generally good but does not provide a comprehensive summary of how various constitutional rights and liberties, with a slew of cases to back it up, add up to (among other things) the right to choose an abortion.  It summarizes some precedents that do so.  And, it's okay. The joint dissent had enough to do.  The material is out there.  

The majority assures us it is just cutting off abortion, but as the dissent notes, there are many more lawsuits to come. A federalism fight about abortion pills is perhaps one of them.  Thomas' concurrence is a warning about the additional stuff that might be on the chopping block.  

But, the idea that the reason is that the Supreme Court will suddenly not protect substantive due process (or the basic underlining principle of unenumerated rights) is a lot more dubious. The overall principle has been around in some form since the Founding.  The reference to privileges and immunities alone shows it still will be with us for some time.