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12/13/2021

Eric Segall on Abortion and the Constitution's Text [Updated with a Response from Professor Segall]
Michael Ramsey

At Dorf on Law, Eric Segall: Abortion, Guns, and the Irrelevance of Text to Constitutional Law.  From the introduction:

During the Supreme Court's oral argument in Dobbs v. Jackson Women's Health Organization last week, there was relatively little mention of constitutional text. For over 50 years, conservative critics of Roe and Casey have argued that these cases were wrongly decided because the right to terminate a pregnancy is not in the Constitution. Yet, during the Dobbs argument, the conservative Justices seemed to just assume that Roe and Casey were incorrect and argued instead about whether viability is an appropriate or arbitrary line (Roberts), whether changes in adoption access undercut abortion jurisprudence (Barrett), and whether the states could criminalize reckless behavior by pregnant women (Thomas). But arguments about or referring to constitutional text were largely absent.

One explanation for the lack of substantial discussion about text by the Justices might be that they agree with Professor Ilya Somin who recently argued over at the Volokh Conspiracy that, although he takes no position on whether the right to choose should be constitutionally protected, the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey.

Professor Somin said the following:

It is true that a right to abortion is nowhere specifically mentioned in the Constitution. If it were, that would have made Roe and subsequent cases much easier to decide. But it doesn't necessarily follow that there is no constitutional right to abortion.

Some parts of the Constitution establish very clear and specific rules, such as that each state gets two senators, and that the president must be at least 35 years old. But many others state broad, general principles that courts must then apply to specific cases.... The case for a right to abortion comes down to whether that right falls within the scope of broadly phrased parts of the text, such as the 'liberty' protected by the Due Process clauses of the Fifth and Fourteenth Amendments, or the 'equal protection of the laws' (also part of the Fourteenth Amendment). Some defenders of Roe argue that a right to abortion is necessary to ensure 'equal protection' for women.... None of the above by itself determines whether the Constitution protects a right to abortion (an issue I will leave to others). But it can help clear away some of the underbrush of bad arguments surrounding the question. The issue cannot be resolved simply by pointing out that abortion isn't specifically mentioned in the Constitution.

Professor Somin is right and could also have pointed to many Supreme Court cases either protecting rights not mentioned in the Constitution or establishing limits on federal power also nowhere to be found in the constitutional text. ...

The reality is that arguments deriving from constitutional text cannot justify either protecting or denying a right for women to terminate the pregnancies. Values, principles, and politics inevitably dictate how judges rule on the abortion question.

I think this is partly right but mostly wrong as a matter of original meaning.  I agree with Professors Segall and Somin that the fact that abortion isn't specifically mentioned in the Constitution's text does not conclusively prove that it is not protected by the Constitution's original meaning.  As Professor Somin says, parts of the Constitution's text, including most of Section 1 of the Fourteenth Amendment, are written in general language without specifics.  Yet that general language must have meaning, protecting rights that are not specifically mentioned by, but are encompassed within, its general terms.

I don't think any originalist judge or scholar disputes that conclusion.  But that doesn't mean that the Constitution's text isn't relevant to the question of abortion rights.  In an original meaning analysis, if there is a right to abortion in the Constitution, it must arise from some constitutional text, whether general or specific.  Of course the right need not be mentioned specifically (again, no one disputes this), but it nonetheless must be encompassed within some text.  The originalist argument against abortion rights is that there is no constitutional text, specific or general, whose original meaning encompasses abortion rights. 

Justice Thomas pressed this point in the Dobbs oral argument, asking what text were the respondents relying on to establish an abortion right.  This was not a simplistic suggestion that abortion isn't specifically mentioned so there can be no such text. Of course Justice Thomas agrees that general text can establish rights without specifically mentioning them.  But he wanted to know: which general text did respondents think established the specific right, and why did they think so?  (He did not get much of an answer.)

The other originalist-oriented Justices did not press the textual point, but I don't think at all that it was because "they agree with Professor Ilya Somin ... [that] the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey."  Rather, I presume that they (like Justice Thomas) think that the original meaning of the general language of the Fourteenth Amendment does not encompass an abortion right -- not because abortion isn't specifically mentioned, but because the text, though general, doesn't extend to abortion.  Thus the main issue, on which they focused, was whether stare decisis counselled against overruling a precedent that (in their view) could not be reconciled with the Constitution's text.  This does not show that the text was irrelevant; rather, it shows that the Justices did not think there was a substantial textual argument to the contrary (and respondents, who also focused mostly on stare decisis, did not give much reason to think otherwise).

In sum, the original meaning of constitutional text is highly relevant to the originalist position on abortion.  That the text in question is general rather than specific does not change that conclusion.

UPDATE:  ERIC SEGALL responds: 

Thanks to Mike for again discussing my work (and Ilya Somin’s) regarding text and abortion. Mike’s conclusion is that “In sum, the original meaning of constitutional text is highly relevant to the originalist position on abortion.  That the text in question is general rather than specific does not change that conclusion.” 

I would ask Mike, maybe rhetorically, what does he mean by “general” here. Most litigated Constitutional cases, maybe all, derive from “general text.” But whether it is color-blindness, or anti-commandeering, or equal state sovereignty, the Court uses hopelessly general text to announce rules. The right to abortion could come from the 14th Amendment (due process, equal protection, or privileges or immunities), or the 9th Amendment. But arguments about text won’t solve the issue just like arguments about text don’t give us the three non-textual constructions listed above. To get to those rules, we need history, tradition, values, consequences, and precedent. So too with abortion, and virtually all of constitutional law. In other words, the presence or absence of text is mostly irrelevant given the imprecise nature of our litigated constitution.