As always, you can find the Dobbs v. Jackson decision here.

Paragraph 9 of 9

Sentence 4 of 4

The final sentence of Part II Section A is a declaration:

“When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”

I have to admit that on this pass through this section I’ve been so focused on one sentence at a time that I don’t have any sense of whether the Court might think that this is established already. I need to go back through Section A to take stock of where we are. For now, this is also undetermined:

• “When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.”

Maybe more significant than this sentence is the massive footnote attached at the end. Footnote 22 does serious work—the kind of work that I feel needs to be in the body of the argument—and assumes some propositions that the decision hasn’t earned to this point. Here it is in full:

“That is true regardless of whether we look to the Amendment’s Due Process Clause or its Privileges or Immunities Clause. Some scholars and Justices have maintained that the Privileges or Immunities Clause is the provision of the Fourteenth Amendment that guarantees substantive rights. See, e.g., McDonald v. Chicago, 561 U. S. 742, 813–850 (2010) (Thomas, J., concurring in part and concurring in judgment); Duncan, 391 U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights: Creation and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy and Distrust 22–30 (1980); 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089–1095 (1953). But even on that view, such a right would need to be rooted in the Nation’s history and tradition. See Corfield v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1823) (describing unenumerated rights under the Privileges and Immunities Clause, Art. IV, §2, as those “fundamental” rights “which have, at all times, been enjoyed by the citizens of the several states”); Amar 176 (relying on Corfield to interpret the Privileges or Immunities Clause); cf. McDonald, 561 U. S., at 819–820, 832, 854 (opinion of Thomas, J.) (reserving the question whether the Privileges or Immunities Clause protects “any rights besides those enumerated in the Constitution”).

That’s a lot. I don’t know how common it is for the Court to use footnotes in this way, but I’m not a fan.

As I go back through this section a few basic concepts leap out at me, such as “liberty,” “ordered liberty,” and “history and tradition.” Those need more attention and other claims need to be traced out through the citations and references they lead to. I don’t really have a strategy or an agenda other than eventually accounting for what the Court has established versus what it has assumed, implied, or ignored, and whether assuming, implying, and ignoring some ideas might be justified or sufficient.