By James G. Hodge, Jr.
Based on the May 2022 leak of an initial draft, most believe the Supreme Court will carry through some rescission of abortion rights later this month through its final opinion in Dobbs v. Jackson Women’s Health Organization.
Already, concerns have arisen over other freedoms the Court may seriously reconsider down the road, including rights to gay marriage, intimacy, contraception, and informational privacy.
These existing rights share a common core: they are each largely constructs from prior Court decisions, and not explicitly supported by the Framers’ express constitutional language. Lacking clear recognition, textualists on the Court may ultimately attempt to void them despite decades of Supreme Court precedents. Justice Alito, the lead drafter of the leaked opinion, and other conservative Justices seem eager to toss precedence aside in favor of strict constitutional language.
Moreover, Congress, the President, and states are limited in their abilities to fight such rights reversals. On politically-hot issues like abortion, voting interests among members of Congress hardly represent general views of Americans. President Biden’s administration is already mobilizing potential response efforts to Dobbs under his executive authority, but admits its own limitations.
What about states? Liberal states like California, New York, and Illinois may hold the line against complete abolition of abortion access or other rights previously secured by the Supreme Court. States’ unique constitutional language may be interpreted by their own courts to bestow rights the federal Supreme Court denies.
However, two premier problems surface. First, state supreme court decisions apply only in jurisdictions where they are issued. That a right to access abortions exists in California means nothing in Arizona, Iowa, Texas, or Utah. Second, U.S. Supreme Court interpretations of federal constitutional law are supreme. State courts cannot interpret federal constitutional language contrary to the Supreme Court’s judgements.
So, who is left to counter denials of rights unmoored from constitutional text? Why, the Supreme Court itself.
Let’s be clear. This is not about changing the members of the Court over time, or packing the Court with new members, as multiple Presidents including Biden have considered. Rather, the limits that the Supreme Court faces in reversing precedential rights are part of the fabric of the Constitution itself.
Structural principles embedded in the Constitution like separation of powers and federalism provide bulwarks against Supreme Court domination. Separation of powers limits the domain of each branch of government – legislative, executive, and judicial. Courts interpret laws; they do not create or enforce them. Federalism divides powers among national and state governments. Consequently, manifold, state-based matters are simply out of the reach of the Supreme Court.
Like individual rights, these structural facets are part of the Constitution’s cohesive whole, which is intended to limit governmental powers over individuals and groups. Under this framework, the Court’s assessment of specific rights must invariably match the Constitution’s comprehensive structural design to survive long-term scrutiny.
If the Court strikes down abortion rights in Dobbs, for example, states’ responses will vary. Some like California will seek to protect access to abortion. Provided its efforts comport with Dobbs, principles of federalism militate against substantial Supreme Court interference. Other states may deny access to abortions through measures that defy other constitutional norms. Proposed criminal penalties against persons aiding or abetting women in Missouri seeking out-of-state abortions, for example, may hinder national commerce, which is an exclusive federal concern. Courts reviewing such laws in the future may strike them down on largely structural grounds, namely federal preemption.
The Court’s opinions may be supreme, but its role in U.S. democracy is not. In the endgame, rights originally interpreted to protect against government interference may be reinstated in part, or altogether, under constitutional structural protections. The Supreme Court should be extremely wary of denying previously-granted rights through logic that does not comport with the Constitution’s cohesive foundations. What rights it reverses today may be flanked later by structural boundaries protecting us all.
James G. Hodge, Jr., JD, LLM, is the Peter Kiewit Foundation Professor of Law and Director of the Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, Arizona State University.
